Form 1-A Emerging Fuels Technolog
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E-mail1-A LIVE 0001505032 XXXXXXXX Emerging Fuels Technology, Inc. OK 2010 0001505032 1311 27-3842479 7 2 6024 S. 116th East Avenue Tulsa OK 74146 918-286-6802 Jeanne Campanelli Other 805095.00 0.00 129891.00 140494.00 1308386.00 731958.00 150000.00 881958.00 426428.00 1308386.00 854132.00 1839159.00 43320.00 -850136.00 -0.03 -0.03 M&K CPAs PLLC Common Stock 27352941 000000N/A N/A Series A Preferred Stock 3766588 000000N/A N/A N/A 0 000000N/A N/A true true Tier2 Audited Equity (common or preferred stock) Y Y N Y N N 20833333 0 3.6000 75000000.00 0.00 0.00 0.00 75000000.00 Dalmore 750000.00 M&K CPAs PLLC 23000.00 CrowdCheck Law/Covey Law Firm, PLLC 140000.00 136352 true AL AK AZ AR CA CO CT DE FL GA HI ID IL IN IA KS KY LA ME MD MA MI MN MS MO MT NE NV NH NJ NM NY NC ND OH OK OR PA RI SC SD TN TX UT VT VA WA WV WI WY DC PR AL AK AZ AR CA CO CT DE FL GA HI ID IL IN IA KS KY LA ME MD MA MI MN MS MO MT NE NV NH NJ NM NY NC ND OH OK OR PA RI SC SD TN TX UT VT VA WA WV WI WY DC PR true
AN OFFERING STATEMENT PURSUANT TO REGULATION A RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. INFORMATION CONTAINED IN THIS PRELIMINARY OFFERING CIRCULAR IS SUBJECT TO COMPLETION OR AMENDMENT. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED BEFORE THE OFFERING STATEMENT FILED WITH THE COMMISSION IS QUALIFIED. THIS PRELIMINARY OFFERING CIRCULAR SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR MAY THERE BE ANY SALES OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL BEFORE REGISTRATION OR QUALIFICATION UNDER THE LAWS OF SUCH STATE. THE COMPANY MAY ELECT TO SATISFY ITS OBLIGATION TO DELIVER A FINAL OFFERING CIRCULAR BY SENDING YOU A NOTICE WITHIN TWO BUSINESS DAYS AFTER THE COMPLETION OF THE COMPANY’S SALE TO YOU THAT CONTAINS THE URL WHERE THE FINAL OFFERING CIRCULAR OR THE OFFERING STATEMENT IN WHICH SUCH FINAL OFFERING CIRCULAR WAS FILED MAY BE OBTAINED.
PRELIMINARY OFFERING CIRCULAR DATED AUGUST 2, 2021
EMERGING FUELS TECHNOLOGY, INC.
6024 S. 116th East Avenue
Tulsa, Oklahoma 74146
Tel.: 918.286.6802
20,833,333 SHARES OF NON-VOTING COMMON STOCK,
MINIMUM INVESTMENT: $360
SEE “SECURITIES BEING OFFERED” AT PAGE 40
| Price to Public | Underwriting discount and commissions (1) | Proceeds to issuer | |
| Per share | $3.60 | $0.036 | $3.564 |
| Total Maximum | $74,999,998.80 | $749,999.99 | $74,249,998.81 |
| (1) | The Company has engaged Dalmore Group, LLC, member FINRA/SIPC (“Dalmore”), to act as the broker-dealer of record in connection with this offering, but not for underwriting or placement agent services. This includes the 1% commission, but it does not include the one-time set-up fee and consulting fee payable by the Company to Dalmore. Dalmore will also be providing certain administrative and compliance related functions in connection with this offering. See “Plan of Distribution and Selling Securityholders” for details. |
This offering will terminate at the earlier of the date at which the maximum offering amount has been sold or the date at which the offering is earlier terminated by the Company at its sole discretion. At least every 12 months after this offering has been qualified by the United States Securities and Exchange Commission (the “Commission”), the Company will file a post-qualification amendment to include the Company’s recent financial statements.
The Company has engaged Lending Club Bank as escrow agent to hold any funds that are tendered by investors. The offering is being conducted on a best-efforts basis without any minimum target. There is no minimum number of shares that needs to be sold in order for funds to be released to the Company and for this offering to close, which may mean that the Company does not receive sufficient funds to cover the cost of this offering. The Company may undertake one or more closings on a rolling basis. After each closing, funds tendered by investors will be made available to the Company. After the initial closing of this offering, we expect to hold closings on at least a monthly basis.
Each holder of the Company’s Non-Voting Common Stock has no voting rights. Holders of the Common Stock will continue to hold the voting power of all of the Company’s equity stock at the conclusion of this offering and therefore control the board.
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION DOES NOT PASS UPON THE MERITS OR GIVE ITS APPROVAL OF ANY SECURITIES OFFERED OR THE TERMS OF THE OFFERING, NOR DOES IT PASS UPON THE ACCURACY OR COMPLETENESS OF ANY OFFERING CIRCULAR OR OTHER SOLICITATION MATERIALS. THESE SECURITIES ARE OFFERED PURSUANT TO AN EXEMPTION FROM REGISTRATION WITH THE COMMISSION; HOWEVER, THE COMMISSION HAS NOT MADE AN INDEPENDENT DETERMINATION THAT THE SECURITIES OFFERED ARE EXEMPT FROM REGISTRATION
GENERALLY, NO SALE MAY BE MADE TO YOU IN THIS OFFERING IF THE AGGREGATE PURCHASE PRICE YOU PAY IS MORE THAN 10% OF THE GREATER OF YOUR ANNUAL INCOME OR NET WORTH. DIFFERENT RULES APPLY TO ACCREDITED INVESTORS AND NON-NATURAL PERSONS. BEFORE MAKING ANY REPRESENTATION THAT YOUR INVESTMENT DOES NOT EXCEED APPLICABLE THRESHOLDS, WE ENCOURAGE YOU TO REVIEW RULE 251(d)(2)(i)(C) OF REGULATION A. FOR GENERAL INFORMATION ON INVESTING, WE ENCOURAGE YOU TO REFER TO www.investor.gov.
This offering is inherently risky. See “Risk Factors” on page 3
The Company is following the “Offering Circular” format of disclosure under Regulation A.
Sales of these securities will commence on approximately [date].
In the event that we become a reporting company under the Securities Exchange Act of 1934, we intend to take advantage of the provisions that relate to “Emerging Growth Companies” under the JOBS Act of 2012. See “Implications of Being an Emerging Growth Company.”
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In this Offering Circular, the terms “EFT,” “the Company,” “we,” and “us” refer to Emerging Fuels Technology Inc.
Other than in the table on the cover page, dollar amounts have been rounded to the closest whole dollar.
THIS OFFERING CIRCULAR MAY CONTAIN FORWARD-LOOKING STATEMENTS AND INFORMATION RELATING TO, AMONG OTHER THINGS, THE COMPANY, ITS BUSINESS PLAN AND STRATEGY, AND ITS INDUSTRY. THESE FORWARD-LOOKING STATEMENTS ARE BASED ON THE BELIEFS OF, ASSUMPTIONS MADE BY, AND INFORMATION CURRENTLY AVAILABLE TO THE COMPANY’S MANAGEMENT. WHEN USED IN THE OFFERING MATERIALS, THE WORDS “ESTIMATE,” “PROJECT,” “BELIEVE,” “ANTICIPATE,” “INTEND,” “EXPECT” AND SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY FORWARD-LOOKING STATEMENTS, WHICH CONSTITUTE FORWARD LOOKING STATEMENTS. THESE STATEMENTS REFLECT MANAGEMENT’S CURRENT VIEWS WITH RESPECT TO FUTURE EVENTS AND ARE SUBJECT TO RISKS AND UNCERTAINTIES THAT COULD CAUSE THE COMPANY’S ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE CONTAINED IN THE FORWARD-LOOKING STATEMENTS. INVESTORS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON THESE FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE ON WHICH THEY ARE MADE. THE COMPANY DOES NOT UNDERTAKE ANY OBLIGATION TO REVISE OR UPDATE THESE FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES AFTER SUCH DATE OR TO REFLECT THE OCCURRENCE OF UNANTICIPATED EVENTS.
Implications of Being an Emerging Growth Company
We are not subject to the ongoing reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) because we are not registering our securities under the Exchange Act. Rather, we will be subject to the more limited reporting requirements under Regulation A, including the obligation to electronically file:
| ● | annual reports (including disclosure relating to our business operations for the preceding two fiscal years, or, if in existence for less than two years, since inception, related party transactions, beneficial ownership of the issuer’s securities, executive officers and directors and certain executive compensation information, management’s discussion and analysis (“MD&A”) of the issuer’s liquidity, capital resources, and results of operations, and two years of audited financial statements) |
| ● | semiannual reports (including disclosure primarily relating to the issuer’s interim financial statements and MD&A) and |
| ● | current reports for certain material events. |
In addition, at any time after completing reporting for the fiscal year in which our offering statement was qualified, if the securities of each class to which this offering statement relates are held of record by fewer than 300 persons and offers or sales are not ongoing, we may immediately suspend our ongoing reporting obligations under Regulation A.
If and when we become subject to the ongoing reporting requirements of the Exchange Act, as an issuer with less than $1.07 billion in total annual gross revenues during our last fiscal year, we will qualify as an “emerging growth company” under the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”) and this status will be significant. An emerging growth company may take advantage of certain reduced reporting requirements and is relieved of certain other significant requirements that are otherwise generally applicable to public companies. In particular, as an emerging growth company we:
| ● | will not be required to obtain an auditor attestation on our internal controls over financial reporting pursuant to the Sarbanes-Oxley Act of 2002; |
| ● | will not be required to provide a detailed narrative disclosure discussing our compensation principles, objectives and elements and analyzing how those elements fit with our principles and objectives (commonly referred to as “compensation discussion and analysis”); |
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| ● | will not be required to obtain a non-binding advisory vote from our shareholders on executive compensation or golden parachute arrangements (commonly referred to as the “say-on-pay,” “say-on-frequency” and “say-on-golden-parachute” votes); |
| ● | will be exempt from certain executive compensation disclosure provisions requiring a pay-for-performance graph and CEO pay ratio disclosure; |
| ● | may present only two years of audited financial statements and only two years of related MD&A; and |
| ● | will be eligible to claim longer phase-in periods for the adoption of new or revised financial accounting standards. |
We intend to take advantage of all of these reduced reporting requirements and exemptions, including the longer phase-in periods for the adoption of new or revised financial accounting standards under Section 107 of the JOBS Act. Our election to use the phase-in periods may make it difficult to compare our financial statements to those of non-emerging growth companies and other emerging growth companies that have opted out of the phase-in periods under Section 107 of the JOBS Act.
Under the JOBS Act, we may take advantage of the above-described reduced reporting requirements and exemptions for up to five years after our initial sale of common equity pursuant to a registration statement declared effective under the Securities Act of 1933, as amended, or such earlier time that we no longer meet the definition of an emerging growth company. Note that this offering, while a public offering, is not a sale of common equity pursuant to a registration statement, since the offering is conducted pursuant to an exemption from the registration requirements. In this regard, the JOBS Act provides that we would cease to be an “emerging growth company” if we have more than $1.07 billion in annual revenues, have more than $700 million in market value of our common stock held by non-affiliates, or issue more than $1 billion in principal amount of non-convertible debt over a three-year period.
Certain of these reduced reporting requirements and exemptions are also available to us due to the fact that we may also qualify, once listed, as a “smaller reporting company” under the Commission’s rules. For instance, smaller reporting companies are not required to obtain an auditor attestation on their assessment of internal control over financial reporting; are not required to provide a compensation discussion and analysis; are not required to provide a pay-for-performance graph or CEO pay ratio disclosure; and may present only two years of audited financial statements and related MD&A disclosure.
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Emerging Fuels Technology Inc. is a well-established energy technology company with a research and development facility in Tulsa, Oklahoma. EFT has a growing patent portfolio with revenue from contract research, license fees and catalyst sales from multiple licensed projects at various stages of development. EFT is focused on using its technology to profitably turn waste sources of carbon into drop-in compatible fuels and chemicals that greatly reduce Greenhouse Gas (“GHG”) emissions.
EFT was initially formed as a limited liability company under the laws of the State of Oklahoma on November 26, 2007 and was converted to a corporation on October 29, 2010.
Our products
We are focused on the development and implementation of methods for producing synthetic fuels and chemicals from a variety of carbonaceous feedstocks such as natural gas, biogas, CO2, municipal solid waste (“MSW”), biomass and bio-derived oils.
In addition to our Gas-to-Liquids (“GTL”) and Biogas-to-Liquids (”BioGTL”) experience we have worked and licensed our technology for other feedstocks (“XTL”) including Biomass-to-Liquids (“BTL”), MSW-to-Liquids and CO₂-to-Liquids (“CO₂TL”) projects around the world. Additionally, we have applied our upgrading technology to a wide range of feedstocks such as algae, plant oils and plastics.
Our offerings include technology licensing for GTL, BioGTL, XTL, and CO2TL projects with start-up support and training services. Furthermore, we provide a range of related engineering and laboratory services, which include contract catalyst development, catalyst testing, analytical services, process development, process modeling producing product samples, process scale-up, engineering and design, and technology evaluations.
Our mission
Our mission is to continuously invest in technological innovation and apply our technology to the construction of facilities owned by the Company to generate revenue: (a) for GTL and BioGTL projects, to provide our clients a solution based on commercially proven components that are ready for integration into a complete, sound, verifiable and financeable package; and (b) for XTL projects (biomass, MSW or CO2) to provide our Fischer-Tropsch (“FT”) synthesis technology and product upgrading technology with integration into the client’s plant.
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The Offering
| Securities offered: | Maximum of 20,833,333 Shares of Non-Voting Common Stock | |
| Offering price per share: | $3.60 | |
| Minimum investment: | The minimum investment in this offering is $360 | |
| Common Stock outstanding before the offering (1) |
27,352,941.40 shares
| |
| Non-Voting Common Stock outstanding before the offering |
0 shares
| |
| Series A Preferred Stock outstanding before the offering (1) | 3,766,588.20 shares | |
| Use of proceeds: | We intend to use the net proceeds of this offering to design, fully develop and construct three BioGTL plants and one FlareBuster plant based on our proprietary technology. See “Use of Proceeds to Issuer” for details. |
| (1) | Gives effect to the 10,000-for-1 stock split effected by the Company on July 20, 2021. See “Securities Being Offered.” Does not include shares issuable upon exercise of options outstanding under the 2013 Equity Award Plan or warrants. |
Selected Risks Associated with Our Business
| - | We do not have a history of building, owning and operating commercial renewable/alternative transportation fuels facilities. |
| - | We have a history of generating losses. |
| - | We may underestimate the cost of constructing, operating and maintaining our planned facilities. |
| - | We will need substantial additional capital to expand our business and expect to raise additional capital through debt and equity offerings. |
| - | We face risks relating to environmental laws and regulations. |
| - | Our ability to develop and sell our products is subject to government regulation. |
| - | We may be unable to obtain renewable fuel credits |
| - | We may face risks related to sales in California. |
| - | We face risks related to changes in government regulations. |
| - | We may face challenges in obtaining market acceptance of our planned products. |
| - | We face customer acquisition risks. |
| - | Limited availability of feedstock may adversely affect us. |
| - | Our business model depends on our ability to manage our supply chain. |
| - | We rely on third parties to provide services essential to the success of our business. |
| - | Our business will be subject to fluctuations in commodity prices. |
| - | Growth may place significant demands on our management and our infrastructure. |
| - | Loss of key personnel including key management personnel and key technical personnel, or failure to attract and retain additional personnel could delay our product development programs and harm our research and development efforts and our ability to meet our business objectives. |
| - | Our business may be disrupted by physical disasters and environmental accidents. |
| - | We may face product liability claims. |
| - | Our operating results may fluctuate from period to period. |
| - | Our ability to use our net operating loss carryforwards to offset future taxable income may be subject to certain limitations. |
| - | We face risks related to our international expansion plans. |
| - | We face risks related to our intellectual property. |
| - | The effects of the novel coronavirus may further materially and adversely affect our business, results of operations and liquidity. |
| - | We depend on clients that may face financial conditions that may impact our collection of receivables. |
| - | We face additional risks related to the offering and ownership of our securities. |
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The Commission requires the Company to identify risks that are specific to its business and its financial condition. The Company is still subject to all the same risks that all companies in its business, and all companies in the economy, are exposed to. These include risks relating to economic downturns, political and economic events and technological developments (such as cyber-attacks and the ability to prevent those attacks). Additionally, early-stage companies are inherently more risky than more developed companies. You should consider general risks as well as specific risks when deciding whether to invest.
Risks Related to Our Business and Industry
We do not have a history of building, owning and operating commercial renewable/alternative transportation fuels facilities.
We do not have a history of building, owning, and operating our planned facilities. We have not yet commercialized our renewable/alternative transportation fuels plant nor have we generated any revenue from them. We are subject to the substantial risk of failure facing businesses seeking to develop new products.
Certain factors that could, alone or in combination, prevent us from successfully commercializing our products include:
| • | technical challenges developing our commercial production processes that we are unable to overcome; |
| • | our ability to finance the roll-out of our planned standardized commercial production facilities, including securing private or public debt and/or equity financing, project financing and/or federal, state and local government incentives; |
| • | our ability to achieve commercial-scale production of renewable transportation fuels on a cost-effective basis and in the time frame we anticipate; |
| • | our ability to secure and maintain customers to purchase any renewable transportation fuels we produce from our planned commercial production facilities; |
| • | our ability to produce renewable transportation fuels that meet our potential customers’ specifications; |
| • | our ability to secure access to sufficient feedstock quantities at economic prices; |
| • | our ability to secure and maintain all necessary regulatory approvals for the production, distribution and sale of our renewable/alternative transportation fuels and to comply with applicable laws and regulations; and |
| • | actions of direct and indirect competitors that may seek to enter the renewable/alternative transportation fuels markets in competition with us or that may seek to impose barriers to one or more aspects of the renewable/alternative transportation fuels business that we are pursuing. |
We have no experience producing renewable transportation fuels at the scale needed for the development of our business or in building the facilities necessary for such production, and we will not succeed if we cannot effectively scale our proprietary technology platform and process design.
We must demonstrate our ability to apply our proprietary technology platform and process design at commercial scale to convert natural gas into alternative fuels and chemicals and to convert biogas into renewable transportation fuels on an economically viable basis. Such production will require that our proprietary technology platform and process design be scalable from our demonstration unit to commercial production facilities. We have not yet completed construction of or operated a commercial-scale production facility, and our technology may not perform as expected when applied at the scale that we plan or we may encounter operational challenges for which we are unable to devise a workable solution.
As a result of these risks, we may be unable to achieve commercial-scale production in a timely manner, or at all. If these risks materialize, our business and ability to commercialize our renewable transportation fuels would be adversely affected.
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We have a history of generating losses.
We have a history of net losses, and we expect significant increases in our costs and expenses to result in continuing losses as we seek to build and operate our renewable transportation fuels plants. We have incurred substantial net losses since our inception, including net losses of approximately $850,130 for the year ended December 31, 2020. We expect these losses to continue. As of December 31, 2020, we had an accumulated deficit of $11.9 million. We expect to incur additional costs and expenses related to the continued development and expansion of our business, including our research and development expenses, continued testing and development at our pilot and demonstration facilities and engineering and design work and construction of our planned commercial production facilities. We have not yet commercialized our renewable transportation fuels plants. We cannot assure you that we will ever achieve or sustain profitability on a quarterly or annual basis.
We may underestimate the cost of constructing, operating and maintaining our planned facilities.
The actual cost of constructing, operating and maintaining the facilities necessary to produce our renewable/alternative transportation fuels in commercial volumes may be significantly higher than we plan or anticipate.
The production of commercial volumes of our renewable/alternative transportation fuels will require the construction of commercial-scale facilities. The construction of these new facilities will require the expenditure of significant amounts of capital, which may exceed our estimates. We may be unable to complete these facilities at the planned costs, on schedule or at all. The construction of new facilities may be subject to construction cost overruns due to labor costs, labor shortages or delays, costs of equipment and materials, weather delays, inflation or other factors, which could be material. In addition, the construction of our facilities may be subject to the receipt of approvals and permits from various regulatory agencies. Those agencies may not approve the projects in a timely manner or may impose restrictions or conditions on a production facility that could potentially prevent construction from proceeding, lengthen its expected completion schedule and/or increase its anticipated cost.
If and when our facilities are constructed, our operating and maintenance costs may be significantly higher than we anticipate. In addition, our facilities may not operate as efficiently as we expect and may experience unplanned downtime, which may be significant.
We will need substantial additional capital to expand our business and expect to raise additional capital through debt and equity offerings.
We will need substantial additional capital in the future in order to expand our business.
We require substantial additional capital to grow our business, particularly as we design, engineer and construct our commercial production facilities. The extent of our need for additional capital will depend on many factors, including our ability to obtain equity and debt financing from various public or private sources and to meet any related equity contribution requirements, whether we succeed in producing renewable/alternative transportation fuels at commercial scale, our ability to control costs, the progress and scope of our research and development projects, the effect of any acquisitions of other businesses or technologies that we may make in the future and the filing, prosecution and enforcement of patent claims.
We will need to raise additional funds to build our planned standard commercial production facilities and subsequent facilities, continue the development of our technology and products and commercialize any products resulting from our research and development efforts. Future financings that involve the issuance of equity securities or securities that are convertible into equity would cause our existing shareholders to suffer dilution. In addition, debt financing sources may be unavailable to us and any debt financing may subject us to restrictive covenants that limit our ability to conduct our business. We may be unable to raise sufficient additional funds on acceptable terms, or at all. If we are unable to raise sufficient funds, our ability to fund our operations, take advantage of strategic opportunities, develop products or technologies, or otherwise respond to competitive pressures could be significantly impacted. If this happens, we may be forced to delay the construction of commercial production facilities, delay, scale back or terminate research or development programs or the commercialization of products resulting from our technologies, curtail or cease operations or obtain funds through collaborative and licensing arrangements that may require us to relinquish commercial rights or grant licenses on terms that are unfavorable to us. If adequate funds are unavailable, we will be unable to execute successfully our business plan or possibly continue our business.
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We face risks relating to environmental laws and regulations.
We may incur significant costs complying with environmental laws and regulations, and failure to comply with these laws and regulations could expose us to significant liabilities.
The production of renewable/alternative fuels involves the emission of various airborne pollutants. As a result, we are subject to several different environmental laws, regulations and permitting requirements administered by the EPA and the states where our facilities are and may be located, including Clean Air Act, or “CAA,” requirements. These laws, regulations and permitting requirements may restrict our emissions, affect our ability to make changes to our operations, and otherwise impose limitations on or require controls on our operations. In addition to costs that we expect to incur to achieve and maintain compliance with these laws, new or more stringent CAA standards or other environmental requirements in the future also may limit our operating flexibility or require the installation of new controls at our facilities.
In recent years, the U.S. Congress has been considering legislation to further restrict or regulate emissions of greenhouse gases (“GHGs”), such as carbon dioxide and methane, that are understood to contribute to global warming. In addition, almost half of the states, either individually or through multi-state regional initiatives, have begun to address GHG emissions. Independent of Congress, the EPA has adopted regulations controlling GHG emissions under its existing CAA authority.
At this time, the projected GHG emissions from our proposed facilities, would meet the applicable thresholds for GHG permitting or reporting requirements. Although it is not possible at this time to accurately estimate how potential future laws or regulations addressing GHG emissions would impact our business, any future federal laws or implementing regulations that may be adopted to address GHG emissions could require us to incur increased operating costs. The potential increase in the costs of our operations resulting from any legislation or regulation to restrict emissions of GHGs could include new or increased costs to operate and maintain our facilities, install new emission controls on our facilities, acquire allowances to authorize our GHG emissions, pay any taxes related to our GHG emissions and administer and manage a GHG emissions program. We cannot predict with any certainty at this time how these possibilities may affect our operations.
Our ability to develop and sell our products is subject to government regulation.
We may be unable to obtain regulatory approval for the registration of our products as transportation fuels or as cellulosic biofuel under applicable regulatory requirements. The denial or delay of any of such approvals could delay our commercialization efforts and adversely impact our potential customer relationships, business and results of operations. The aforementioned regulatory approvals and requirements include any and all federal, state, county and municipal approvals and requirements.
Our renewable/alternative transportation fuels will be subject to government regulation in our target markets. The U.S. Environmental Protection Agency, or EPA, administers the Clean Air Act, which regulates the commercial registration, distribution and use of fuel products or fuel additives.
Before an entity can introduce a fuel or fuel additive into commerce, it must register that fuel or fuel additive with the EPA. Our gasoline, jet and diesel blendstocks have not been registered with the EPA as a fuel. In addition, in order for our gasoline, jet or diesel blendstocks to qualify as a renewable fuel, advanced biofuel or cellulosic biofuel for the purpose of satisfying the mandates of the Renewable Fuel Standard program (“RFS2”), upon petition the EPA will conduct its own assessment of the greenhouse gas emissions associated with the production and use of our gasoline, jet or diesel blendstocks and must verify that our feedstocks qualify as renewable cellulosic biofuel. Products that we may make from natural gas as the feedstock are considered Alternative and do not qualify as renewable.
The EPA may not complete this assessment in a timely manner, which could delay or increase the costs of the commercialization of our products, or it may determine that our gasoline, jet or diesel blendstocks do not reduce greenhouse gas emissions in a sufficient amount to qualify as a renewable fuel, advanced biofuel or cellulosic biofuel under RFS2. The EPA could also decide that our feedstocks do not meet the definition of renewable, and thus our products would be ineligible for RFS2 credits. A decision by the EPA that our products do not qualify as a renewable fuel, advanced biofuel or cellulosic biofuel for purposes of satisfying renewable fuel mandates would significantly reduce demand and value for our product, which would materially and adversely affect our business.
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We may be unable to obtain renewable fuel credits.
The price of renewable fuel credits may reduce demand for our products. RFS2 allows additional RIN credits to be granted to obligated parties who blend into their fuel more than the required percentage of renewable fuels in a given year. The price of renewable fuel credits may reduce demand for our products.
RFS2 allows additional RIN credits to be granted to obligated parties who blend into their fuel more than the required percentage of renewable fuels in a given year. These credits may be traded to other parties or may be used in subsequent years to satisfy RFS2 requirements. The trading prices of renewable fuel and advanced biofuel RIN credits are influenced by, among other factors, the transportation costs associated with renewable fuels, the mandated level of renewable fuel use for a specific year, the possibility of waivers of renewable fuel mandates and the expected supply of renewable fuel products. Any reduction in the cost of RIN credits could reduce the demand (or value) for our renewable transportation fuels.
We may face risks related to sales in California.
The Company intends to sell it products in California which will require certain certifications from the California Air Resources Board (“CARB”) and determination of a Carbon Intensity (“CI”) number for its products under California's Low Carbon Fuels Standard (“LCFS”). See “The Company’s Business – Market -- Renewable Fuels Standard (RFS) in the United States -- The California LCFS Program.” The value of these LCFS credits is based on the CI of the product and market value for the credits at the time of sale. Our inability to sell our products in California would negatively impact the value of our products.
We face risks related to changes in government regulations.
Our future success may depend on our ability to produce our renewable/alternative transportation fuels without government incentives on a cost-competitive basis with petroleum-based fuels. If current or anticipated government incentives are reduced significantly or eliminated and petroleum-based fuel prices are lower or comparable to the cost of our renewable/alternative transportation fuels, demand for our products may decline (or the value of our product may decline), which could adversely affect our future results of operations.
Changes in government regulations, including mandates, tax credits, subsidies and other incentives, could have a material adverse effect upon our business and results of operations.
The market for renewable fuels is heavily influenced by foreign, federal, state and local government regulations and policies. Changes to existing, or adoption of new foreign, federal, state and local legislative and regulatory initiatives that impact the production, distribution or sale of renewable/alternative fuels may harm our business.
The EPA could also revise qualification standards for renewable fuels in ways that increase our expenses by requiring different feedstocks, imposing extensive tracking and sourcing requirements, or prevent products from our process from qualifying as a renewable fuel under RFS2.
In addition, the U.S. Congress has passed legislation that extends tax credits for, among other things, the production of certain renewable fuel products as contemplated by our current process design. However, we cannot assure you that this or any other favorable legislation will remain in place. Any reduction in or phasing out or elimination of existing tax credits, subsidies and other incentives in the United States and foreign markets for renewable fuels, or any inability of us or our prospective customers to access such credits, subsidies and other incentives, may adversely affect demand (or value) for, and increase the overall cost of our renewable transportation fuels, which would adversely affect our business. In addition, market uncertainty regarding future policies may also affect our ability to develop new renewable products and to sell products to our potential customers. Any inability to address these requirements and any regulatory or policy changes could have a material adverse effect on our business, financial condition and results of operations.
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We may face challenges in obtaining market acceptance of our planned products.
We may face challenges in obtaining market acceptance of our renewable/alternative transportation fuels, and our business would be harmed if they are not accepted by prospective customers in the transportation fuels market.
We intend to market our renewable/alternative transportation fuels as gasoline, jet and diesel blendstocks to refiners, terminal and rack owners and end users. These potential customers frequently impose lengthy and complex product qualification procedures on new blendstocks, influenced by finished product specifications, processing considerations, regulatory issues and other factors. Potential customers may be reluctant to adopt new products due to a lack of familiarity with our blendstocks even though our gasoline, jet and diesel blendstocks meet industry specifications. In addition, our renewable transportation fuels may need to satisfy product certification requirements of equipment manufacturers. For example, fleet owners may need to certify that the use of our renewable transportation fuels in their vehicles will not invalidate product warranties. If we are unable to convince prospective customers that our gasoline, jet and diesel blendstocks are compatible with their existing processes or that the use of our products is otherwise to their benefit, our business will be adversely affected.
Any offtake agreements negotiated for the sale and purchase of the gasoline, jet and diesel blendstocks from our first commercial production facility are subject to the satisfaction of certain technical, commercial and production requirements. If we fail to meet these requirements, our commercialization plan will be harmed.
Currently, we have no offtake agreements for the sale and purchase of the gasoline, jet or diesel blendstocks to be produced at any commercial production facility and expect that such agreements will be subject to the satisfaction of certain technical, commercial and production requirements. These agreements are not likely to affirmatively obligate our counterparties to purchase specific quantities of any products from us at this time, and these agreements will likely contain important conditions that must be satisfied before any such purchases are made. These conditions include that we and our counterparties agree on product specifications for our gasoline, jet and diesel blendstocks and that our products conform to those specifications. If we do not satisfy these contractual requirements and if we subsequently are unable to renegotiate those terms, our counterparties may terminate the agreements and our commercialization plan will be harmed.
We have limited experience in structuring arrangements with prospective customers for the purchase of our renewable/alternative transportation fuels, including price mechanisms that allow us to realize the benefit of any government incentives our renewable transportation fuels generate for ourselves or our potential customers, and we may not succeed in this essential aspect of our business.
We have not yet completed the commercial development of our renewable/alternative transportation fuels, and we have limited experience structuring arrangements with potential customers that would allow us to benefit from new government incentives for renewable fuels. Our pricing formula with these potential customers must be designed to allow us to realize the benefits of cellulosic biofuel renewable identification number (“RIN”) credits, cellulosic biofuel tax credits and other government incentives we generate for ourselves or our customers. Markets that value cellulosic biofuel RIN credits and other government incentives may take a long period of time to develop or may not materialize at all. These events could delay our ability to capitalize on the opportunities presented to us by our technology, including preventing us from achieving commercialization of our renewable transportation fuels.
We face customer acquisition risks.
Further, we plan to sell large amounts of our products to specific potential customers, and this will require that we effectively negotiate contracts for these relationships. The companies with which we expect to have customer arrangements generally are much larger and have substantially greater bargaining power than us. As a result, we may be ineffective in negotiating the terms of our relationships with these companies, which could adversely affect our future results of operations.
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Limited availability of feedstock may adversely affect us.
The production of our renewable/alternative transportation fuels will require significant amounts of feedstock at multiple locations, and we may be unable to acquire sufficient amounts of feedstock to produce the amount of our products that we commit to sell to potential customers, or we may experience difficulties or incur costs obtaining such feedstock.
The successful commercialization of our renewable transportation fuels will require us to acquire and process large amounts of feedstock, which primarily will be biogas from landfills and anaerobic digesters. We may experience difficulties in obtaining access to feedstock and transporting feedstock to our commercial production facilities. Our access to feedstock may be adversely affected by competitors seeking to acquire such feedstock.
We may be unable to secure sufficient feedstock for our planned commercial production facilities on terms acceptable to us or at all. If we are unable to secure cost-effective feedstock, our ability to produce our renewable transportation fuels would be adversely affected. The price of biogas feedstock may increase or become volatile due to changes in demand, such as the increased use of such feedstock in the generation of renewable electricity or the creation of renewable natural gas. Such changes would result in higher feedstock prices and/or a significant decrease in the volume of biogas available for the production of the renewable transportation fuels we plan to sell, which could adversely affect our business and results of operations.
Our business model depends on our ability to manage our supply chain.
Our business model and the successful commercialization of our renewable/alternative transportation fuels will depend on our ability to locate commercial production facilities near low-cost, abundant and sustainable sources of renewable biogas and in proximity to adequate infrastructure. Our ability to place facilities in locations where we can economically produce our renewable/alternative transportation fuels from nearby feedstock and transport those fuels to potential customers will be subject to the availability and cost of land, the availability of adequate infrastructure and skilled labor resources in such areas, and to legal and regulatory risks related to land use, permitting and environmental regulations. If we are unable to locate facilities at sites that allow economical production and transport of our products, our ability to produce renewable/alternative transportation fuels cost-effectively could be adversely affected.
A disruption in our supply chain for components of our proprietary catalyst could materially disrupt or impair our ability to produce renewable transportation fuels.
We rely on third parties to provide services essential to the success of our business.
We rely on third parties to supply the components of our proprietary catalyst and we require third parties to provide commercial toll manufacture of our proprietary catalyst.
Our operations could be materially disrupted if we lose any of these suppliers or if any supplier experiences a significant interruption in its manufacturing and is unable to provide an adequate supply of these components to meet our demand. Any such disruptions or delays could have a material adverse effect on our business and results of operations.
Our business will be subject to fluctuations in commodity prices.
We intend to market our gasoline, jet and diesel blendstocks as alternatives to corresponding petroleum-based fuels. If the price of petroleum-based fuels declines, we may be unable to produce gasoline, jet and diesel blendstocks that are cost-effective alternatives to their petroleum-based counterparts. Declining oil prices, or the perception of a future decline in oil prices, would adversely affect the prices we can obtain from our potential customers or prevent us from entering into agreements with potential customers for our products.
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Petroleum prices have been extremely volatile. If petroleum prices were to decline from present levels and remain at lower levels for extended periods of time, the demand (or value) for renewable fuels could be reduced, and our results of operations and financial condition may be adversely affected.
In addition, some of our commercial production facilities may use significant amounts of natural gas to operate. Accordingly, our business depends on natural gas supplied by third parties. An increase in the price of natural gas could adversely affect our results of operations and financial condition.
Growth may place significant demands on our management and our infrastructure.
Growth may place significant demands on our management and our infrastructure.
We have experienced, and may continue to experience, expansion of our business as we continue to make efforts to develop and bring our products to market. Our growth and operations have placed, and may continue to place, significant demands on our management and our operational and financial infrastructure. Managing our growth will require significant expenditures and allocation of valuable management resources. If we fail to achieve the necessary level of efficiency in our organization as it grows, our business, results of operations and financial condition would be harmed.
Loss of key personnel, including key management personnel and key technical personnel, or failure to attract and retain additional personnel could delay our product development programs and harm our research and development efforts and our ability to meet our business objectives.
Loss of key personnel, including key management personnel and key technical personnel, or failure to attract and retain additional personnel could delay our product development programs and harm our research and development efforts and our ability to meet our business objectives.
Our business requires a management team and employee workforce that is knowledgeable in the technological and commercial areas in which we operate. The loss of any key member of our management or key technical and operational employees, or the failure to attract or retain such employees could prevent us from developing and commercializing our products and executing our business strategy. We may be unable to attract or retain qualified employees in the future due to the intense competition for qualified personnel among catalyst, refining, alternative and renewable fuel businesses, or due to the unavailability of personnel with the qualifications or experience necessary for our business. Competition for such personnel from numerous companies and academic and other research institutions may limit our ability to hire individuals with the necessary experience and skills on acceptable terms. In addition, we expect that the execution of our strategy of constructing multiple commercial production facilities to bring our products to market will require the expertise of individuals experienced and skilled in managing complex, first-of-kind capital development projects.
All of our employees are at-will employees, which means that either the employee or we may terminate their employment at any time. If we are unable to attract and retain the necessary personnel to accomplish our business objectives, we may experience staffing constraints that will adversely affect our ability to commercialize our products, meet the demands of our potential customers in a timely fashion or to support our internal research and development programs, which could impair our ability to meet our business objectives and adversely affect our results of operations and financial condition.
Our business may be disrupted by physical disasters and environmental accidents.
Our corporate headquarters, research and development and pilot plant facilities are located in Tulsa, OK, which is an area exposed to and affected by tornadoes. Major tornadoes may cause significant disruption in our operations which could have an adverse impact on our operations. We do not have a detailed disaster recovery plan. In addition, we may not carry sufficient business insurance to compensate us for losses that may occur.
We are not insured against environmental pollution resulting from environmental accidents that occur on a sudden and accidental basis, some of which may result in toxic tort claims. Any losses or damages could have a material adverse effect on our cash flows and success as an overall business.
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We may face product liability claims.
We may be subject to product liability claims and other claims of our potential customers.
The design, development, production and sale of our renewable transportation fuels involve an inherent risk of product liability claims and the associated adverse publicity. We may be named in product liability suits relating to our gasoline, jet and diesel blendstocks or the finished gasoline and diesel fuel containing our blendstocks, even for defects resulting from errors of our potential customers. These claims could be brought by various parties, including potential customers who are purchasing our products directly from us or other users who purchase our products from our customers.
In addition, our potential customers may bring suits against us alleging damages for the failure of our products to meet specifications or other requirements. Any such suits, even if unsuccessful, could be costly and disrupt the attention of our management and damage our negotiations with other potential customers.
Although we seek to limit our product liability in contracts with our potential customers, including indemnification from customers for such product liability claims, such limits may not be enforceable or may be subject to exceptions. Our insurance coverage may be inadequate to cover all potential liability claims. Insurance coverage is expensive and may be difficult to obtain. Also, insurance coverage may not be available in the future on acceptable terms and may not be sufficient to cover potential claims. We cannot assure that our potential customers will have adequate insurance coverage to cover against potential claims. If we experience a large insured loss, it might exceed our coverage limits, or our insurance carrier may decline to further cover us or may raise our insurance rates to unacceptable levels, any of which could impair our financial position.
Our operating results may fluctuate from period to period.
Our operating results may fluctuate in the future. As a result, we may fail to meet or exceed the expectations of investors, which could cause our stock price to decline.
Our financial condition and operating results may vary significantly from year to year due to a variety of factors, many of which are beyond our control. Factors relating to our business that may contribute to these fluctuations include the following factors, as well as other factors described elsewhere in this prospectus:
| • | our ability to achieve or maintain profitability; |
| • | historically our operating results are most influenced by our revenues from technology license fees and catalyst sales. The timing of these large technology license fees and catalyst transactions are often unpredictable and make revenues and profits fluctuate; |
| • | the feasibility of producing our renewable transportation fuels on a commercial scale; |
| • | our ability to manage our growth; |
| • | fluctuations in the price of and demand for petroleum-based products; |
| • | the availability of cost-effective renewable feedstock sources; |
| • | the existence of government programs and incentives or regulation; |
| • | potential issues related to our ability to report accurately our financial results in a timely manner; |
| • | our dependence on, and the need to attract and retain, key management and other personnel; |
| • | our ability to obtain, protect and enforce our intellectual property rights; |
| • | potential advantages that our competitors and potential competitors may have in securing funding or developing projects; |
| • | our ability to obtain additional capital that may be necessary to expand our business; |
| • | business interruptions such as tornadoes, hurricanes, natural disasters and accidents; |
| • | our ability to comply with laws and regulations; |
| • | our ability to properly handle and dispose of hazardous materials used in our business; and |
| • | our ability to use our net operating loss carryforwards to offset future taxable income. |
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Our ability to use our net operating loss carryforwards to offset future taxable income may be subject to certain limitations.
In general, under Section 382 of the U.S. Internal Revenue Code of 1986, as amended, a corporation that undergoes an “ownership change” is subject to limitations on its ability to utilize its pre-change net operating loss carryforwards, or NOLs, to offset future taxable income. We have not performed a detailed analysis to determine whether an ownership change under Section 382 of the Internal Revenue Code has occurred after each of our previous issuances of common stock, preferred stock and convertible debt. In addition, if we undergo an ownership change in connection with or after this offering, our ability to utilize NOLs could be limited by Section 382 of the Internal Revenue Code. Future changes in our stock ownership, some of which are outside of our control, could result in an ownership change under Section 382 of the Internal Revenue Code. Furthermore, our ability to utilize NOLs of companies that we may acquire in the future may be subject to limitations.
If we fail to maintain an effective system of internal controls, we might be unable to report our financial results accurately or prevent fraud; in that case, our shareholders could lose confidence in our financial reporting, which would harm our business and could negatively impact the price of our stock.
Effective internal controls are necessary for us to provide reliable financial reports and prevent fraud.
We face risks related to our international expansion plans.
International expansion is one of our growth strategies, and international operations will expose us to additional risks that we do not face in the United States, which could have an adverse effect on our operating results.
We expect to focus our initial business and operations in the United States; however, international expansion is one of our growth strategies. If and when we expand internationally, our operations will be subject to a variety of risks that we do not face in the United States including:
| • | building and managing experienced foreign workforces and overseeing and ensuring the performance of foreign subcontractors; |
| • | increased travel, infrastructure and legal and compliance costs associated with multiple international locations; |
| • | additional withholding taxes or other taxes on our foreign income, and tariffs or other restrictions on foreign trade or investment; |
| • | imposition of, or unexpected adverse changes in, foreign laws or regulatory requirements, many of which differ from those in the United States; |
| • | increased exposure to foreign currency exchange rate risk; |
| • | longer payment cycles for sales in some foreign countries and potential difficulties in enforcing contracts and collecting accounts receivable; |
| • | difficulties in repatriating overseas earnings; |
| • | general economic conditions in the countries in which we operate; and |
| • | political unrest, war, incidents of terrorism or responses to such events. |
Our overall success in international markets will depend, in part, on our ability to succeed in differing legal, regulatory, economic, social and political conditions. We may not be successful in developing and implementing policies and strategies that will be effective in managing these risks in each country where we do business. Our failure to manage these risks successfully could harm our international operations, reduce our international sales and increase our costs, thus adversely affecting our business, financial condition and operating results.
We face risks related to our intellectual property.
There are many companies developing technology in this area of business, and other parties may have intellectual property rights which could limit our ability to operate freely.
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Our commercial success depends on our ability to operate without infringing the patents and proprietary rights of other parties and without breaching any agreements we enter. We are aware of other parties applying various technologies to make renewable/alternative transportation fuels from biogas. We cannot determine with certainty whether patents of other parties may materially affect our ability to conduct our business. Because patent applications can take several years to issue, there may currently be pending applications, unknown to us, that may result in issued patents that cover our technologies or product candidates. We are aware of a significant number of patents and patent applications relating to aspects of our technologies filed by, and issued to, third parties. The existence of third-party patent applications and patents could significantly reduce the scope of coverage of any patents granted to us and limit our ability to obtain meaningful patent protection.
If a third party asserts that we infringe upon its patents or other proprietary rights, we may need to obtain a license, if a license is available, or redesign our technology. We could otherwise face a number of other issues that could seriously harm our competitive position, including:
Litigation may be necessary to defend against these claims. If we fail in defending such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights. Even if we are successful in defending against these claims, litigation could result in substantial costs and demand on management resources.
Our patent applications may not result in issued patents, which may allow competitors to more easily exploit technology similar to ours. Part of our expected market advantage depends in part on our ability to maintain adequate protection of our intellectual property for our technologies and products and potential products in the United States and other countries.
We have adopted a strategy of seeking patent protection in the United States and certain foreign countries with respect to certain of the technologies used in or relating to our products and processes.
As of June 30,2021, we had three pending original patent application families containing over 44 pending claims. These intellectual property claims cover different aspects of our technology, and many of them have been or will be filed both in the United States and in various foreign jurisdictions. These patent applications and granted patents are directed to our enabling technologies and to our methods and products that support our business. However, the issuance and enforcement of patents involves complex legal and factual questions. Accordingly, we cannot be certain that the patent applications that we file will result in patents being issued, or that our patents and any patents that may be issued to us will cover our enabling technology or the methods or products that support our business, or afford protection against competitors with similar technology. Moreover, the issuance of a patent is not conclusive as to its validity, scope or enforceability, and competitors might successfully challenge the validity, scope or enforceability of any issued patents should we try to enforce them. In addition, patent applications filed in foreign countries are subject to laws, rules and procedures that differ from those of the United States, and thus we cannot be certain that foreign patent applications will be granted even if U.S. patents are issued.
Our ability to compete may decline if we are required to enforce or defend our intellectual property rights through costly litigation or administrative proceedings.
Unauthorized parties may attempt to copy or otherwise obtain and use our products or technology. Identifying unauthorized use of our intellectual property is difficult, because we may be unable to monitor the processes and materials employed by other parties, and the end products of our proprietary technology may be commodities from which it would be difficult to ascertain the methods or materials used in their manufacture.
We cannot be certain that the steps we have taken will prevent unauthorized use of our technology (or a third party’s technology):
| • | infringement and other intellectual property claims, which could be costly and time consuming to litigate, whether or not the claims have merit, and which could delay getting our products to market and divert management attention from our business; |
| • | substantial damages for past infringement, which we may have to pay if a court determines that our products or technologies infringe upon a competitor’s patent or other proprietary rights; |
| • | a court prohibition from selling or licensing our technologies or future products unless the holder licenses the patent or other proprietary rights to us, which it would not be required to do; and |
| • | if a license is available from a third party, an obligation to pay substantial royalties or grant cross licenses to our patents or proprietary rights. |
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Proceedings to enforce or defend our intellectual property rights could result in substantial costs, even if the eventual outcome were favorable to us, and would divert both funds and other of our resources from our business objectives. If the outcome of any such proceedings is unfavorable and competitors are able to use our technology without payment to us, our ability to compete effectively could be harmed. Furthermore, the nature of any protection against foreign competition that may be afforded by any patents we may have is often difficult to predict and varies significantly from country to country. Moreover, others may independently develop and obtain patents for technologies that are similar or superior to our technologies. If that happens, we may need to license these technologies, and we may not be able to obtain licenses on reasonable terms, if at all, which could cause harm to our business. Confidentiality agreements with employees and others may not adequately prevent disclosures of trade secrets and other proprietary information.
We rely in part on trade secret protection to protect our confidential and proprietary information and processes. However, trade secrets are difficult to protect. We have taken measures to protect our trade secrets and proprietary information, but these measures may not be effective. We require new employees and consultants to execute confidentiality agreements upon the commencement of an employment or consulting arrangement with us. These agreements generally require that all confidential information developed by the individual or made known to the individual by us during the course of the individual’s relationship with us be kept confidential and not disclosed to third parties. Nevertheless, our proprietary information may be disclosed, third parties could reverse engineer our catalyst and others may independently develop substantially equivalent proprietary information and techniques or otherwise gain access to our trade secrets. Costly and time-consuming litigation could be necessary to enforce and determine the scope of our proprietary rights, and failure to obtain or maintain trade secret protection could adversely affect our competitive business position.
Competitors and potential competitors who have greater resources and experience than we do may develop products and technologies that compete with ours or may use their greater resources to gain market share at our expense.
Our ability to compete successfully will depend on our ability to develop proprietary technologies that produce interchangeable products in large volumes and at costs below the prevailing market prices for our products. Many of our competitors have substantially greater production, financial, research and development, personnel and marketing resources than we do. In addition, certain of our competitors may also benefit from local government programs and incentives that are not available to us. As a result, our competitors may be able to develop competing and/or superior technologies and processes, and compete more aggressively and sustain that competition over a longer period of time than we could. Our technologies and products may be rendered uneconomical or otherwise obsolete by technological advances or entirely different approaches developed by one or more of our competitors. As more companies develop new intellectual property in our markets, the possibility of a competitor acquiring patent or other rights that may limit our products or potential products increases, which could lead to litigation.
In addition, various governments have recently announced a number of spending programs focused on the development of clean technology, including alternatives to petroleum-based fuels and the reduction of carbon emissions. Such spending programs could lead to increased funding for our competitors or the rapid increase in the number of competitors within those markets.
Our limited resources relative to many of our competitors may cause us to fail to anticipate or respond adequately to new developments and other competitive pressures. This failure could reduce our competitiveness and market share, adversely affect our results of operations and financial position, and prevent us from achieving or maintaining profitability.
The effects of the novel coronavirus may further materially and adversely affect our business, results of operations and liquidity.
Last year’s novel strain of coronavirus (COVID-19), has resulted in businesses suspending or substantially curtailing global operations and travel, quarantines, and an overall substantial slowdown of economic activity. Transportation fuels in particular, have experienced significant price declines and reduced demand. A further downturn in global economic growth, or recessionary conditions in major geographic regions, could lead to reduced demand for transportation fuels and negatively affect the market prices of our products, further materially and adversely affecting our business, results of operations and liquidity.
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We depend on clients that may face financial conditions that my impact our collection of receivables.
The Company’s strategy is, in part, based on providing services and technology licenses to established developers of large plants that may be impacted by financial conditions that can, in turn, impact EFT and EFT’s future business prospects: for example, our client and a plant developer, suffered an explosion at one of its plants delaying the payment of royalties due to EFT; similarly, another client and plant developer to which we have been licensing technology, recently announced that it will need to raise additional funding delaying the opening and operations of their plant which, in turn, will impact EFT’s cashflows as receipt of royalty payments will also be delayed.
Risks Related to the Offering and Ownership of Our Securities
The Company is controlled by its founders and other shareholders.
One of the Company’s founders, through The Kenneth L. Agee Trust, currently holds a significant portion of the Company’s Common Stock (43.87%). Black & Veatch Corporation (“B&V”) currently holds all (100%) of the Company’s outstanding Series A convertible participating preferred stock (the “Series A Preferred Stock”). Under the Company’s certificate of incorporation, holders of Series A Preferred Stock are entitled to one vote for each share of Series A Preferred Stock. The Kenneth L. Agee Trust, B&V and all of the Company’s current officers and directors currently hold 63.53% of the combined voting rights of all currently outstanding Common Stock and Series A Preferred Stock. Furthermore, the Company and all of its Common Stock and Series A Preferred Stock shareholders are parties to the Sixth Amended and Restated Shareholders Agreement, dated July 20, 2021 (the “Shareholders Agreement”) under which (among other things) each of The Kenneth L. Agee Trust, B&V, Terry Ingle, and Ray Witten is entitled to designate one person to the Company’s board of directors and all such Common Stock and Series A Preferred Stock shareholders have agreed to vote for such designees.
As a holder of Non-Voting Common Stock, you will not be able to influence our policies or any other corporate matters, including the election of directors, changes to the Company’s governance documents, expanding any employee equity or option pool, and any merger, consolidation, sale of all or substantially all of our assets, or other major action requiring shareholder approval. See “Securities Being Offered”. These few people will make all major decisions regarding the Company.
We face risks relating to internal shareholder agreements.
The Company and B&V are parties to that certain Stock Purchase Agreement dated December 2, 2015. Under the Stock Purchase Agreement, B&V has a put option under which any time on or after the fifth anniversary of the agreement (or December 2, 2020) B&V can require the Company to repurchase all of the Series A Preferred Stock from B&V at a per share price based on the Company’s then-current enterprise value. On May 11, 2021, the Company and B&V entered into an agreement whereby B&V agreed to extend the date upon which B&V could exercise such put option from December 2, 2020 to December 2, 2022; provided, however, if the Company does not close on a minimum of $15,000,000 of additional capital on or before June 30, 2022, then B&V may exercise such put option immediately or at any time thereafter. In addition, under the agreement, the Company must (i) pay dividends to B&V under certain circumstances and (ii) use B&V as its engineering, procurement, and construction contractor on all of the Company’s micro-GTL (BioGTL) projects under certain circumstances for a period of 5 years (or until May 11, 2026). If the Company fails to raise sufficient capital as required under the agreement, and B&V were to exercise its option, the Company may not have sufficient funds to repurchase the Series A Preferred Stock and may have to seek financing, which may have an impact on our financial condition.
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The subscription agreement has a forum selection provision that requires disputes be resolved in state or federal courts in the State of Oklahoma, regardless of convenience or cost to you, the investor.
In order to invest in this offering, investors agree to resolve disputes arising under the subscription agreement in the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the courts of the Northern District of Oklahoma), for the purpose of any suit, action or other proceeding arising out of or based upon the agreement. Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. We believe that the exclusive forum provision applies to claims arising under the Securities Act, but there is uncertainty as to whether a court would enforce such a provision in this context. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. You will not be deemed to have waived the Company’s compliance with the federal securities laws and the rules and regulations thereunder. This forum selection provision may limit your ability to obtain a favorable judicial forum for disputes with us. Although we believe the provision benefits us by providing increased consistency in the application of Oklahoma law in the types of lawsuits to which it applies and in limiting our litigation costs, to the extent it is enforceable, the forum selection provision may limit investors’ ability to bring claims in judicial forums that they find favorable to such disputes, may increase investors’ costs of bringing suit and may discourage lawsuits with respect to such claims. Alternatively, if a court were to find the provision inapplicable to, or unenforceable in an action, we may incur additional costs associated with resolving such matters in other jurisdictions, which could adversely affect our business, financial condition or results of operations.
Using a credit card to purchase shares may impact the return on your investment as well as subject you to other risks inherent in this form of payment.
Investors in this offering have the option of paying for their investment with a credit card, which is not usual in the traditional investment markets. Transaction fees charged by your credit card company (which can reach 5% of transaction value if considered a cash advance) and interest charged on unpaid card balances (which can reach almost 25% in some states) add to the effective purchase price of the shares you buy. See “Plan of Distribution and Selling Securityholders.” The cost of using a credit card may also increase if you do not make the minimum monthly card payments and incur late fees. Using a credit card is a relatively new form of payment for securities and will subject you to other risks inherent in this form of payment, including that, if you fail to make credit card payments (e.g. minimum monthly payments), you risk damaging your credit score and payment by credit card may be more susceptible to abuse than other forms of payment. Moreover, where a third-party payment processor is used, as in this offering, your recovery options in the case of disputes may be limited. The increased costs due to transaction fees and interest may reduce the return on your investment.
The Commission’s Office of Investor Education and Advocacy issued an Investor Alert dated February 14, 2018 entitled: Credit Cards and Investments – A Risky Combination, which explains these and other risks you may want to consider before using a credit card to pay for your investment.
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Dilution means a reduction in value, control or earnings of the shares the investor owns.
Immediate dilution
An early-stage company typically sells its shares (or grants options over its shares) to its founders and early employees at a very low cash cost, because they are, in effect, putting their “sweat equity” into the company. When the company seeks cash investments from outside investors, like you, the new investors typically pay a much larger sum for their shares than the founders or earlier investors, which means that the cash value of your stake is diluted because all the shares are worth the same amount, and you paid more than earlier investors for your shares.
The following table demonstrates the price that new investors are paying for their shares of Non-Voting Common Stock with the effective cash price paid by existing shareholders and assuming that the shares are sold at $3.60 per share. The table presents shares and pricing as issued and reflects all transactions since inception, which gives investors a better picture of what they will pay for their investment compared to the Company’s insiders than just including such transactions for the last 12 months, which is what the Commission requires. The share numbers and amounts in this table give effect to the Stock Split and assume conversion of all outstanding options into shares of Common Stock at a weighted average exercise price. The dilution disclosures contained in this section are based upon the instruments issued and outstanding as of December 31, 2020, the date of our latest audited financial statements.
| Dates Issued | Issued Shares | Potential Shares | Total Issued and Potential Shares | Effective Cash Price per Share at Issuance or Potential Conversion | ||||||||||||||
| Common Stock | 2010-2020 | 27,352,941.40 | – | 27,352,941.40 | $ | 0.21763 | (1) | |||||||||||
| Outstanding Stock Options (2) | 2013-2020 | – | 1,470,000.00 | 1,470,000.00 | $ | 0.85574 | (3) | |||||||||||
| Outstanding Warrants | 2012-2014 | – | 1,240,000.00 | 1,240,000.00 | 1.30000 | (4) | ||||||||||||
| Series A Preferred Stock | 2015 | 3,766,588.20 | – | 3,766,588.20 | $ | 0.79648 | ||||||||||||
| Total Common Share Equivalents | 31,119,529.60 | 2,710,000.00 | 33,829,529.60 | $ | 0.34948 | |||||||||||||
| Investors in this offering, assuming $75 million raised | 20,833,333.00 | – | 20,833,333.00 | $ | 3.60000 | |||||||||||||
| Total after inclusion of this offering | 51,952,862.60 | 2,710,000.00 | 54,662,862.60 | $ | 1.58833 | |||||||||||||
| (1) | Common shares issued for $0.01/share in 2010, the year the Company converted to a corporation |
| (2) | Assumes conversion at exercise price of all outstanding options. Excludes an additional 5,560,000 shares of Common Stock reserved for issuance under the 2013 Equity Award Plan. Excludes 1,200,000 options issued on July 20, 2021 |
| (3) | Stock option pricing is the weighted average exercise price of outstanding options. |
| (4) | Warrant pricing is the weighted average exercise price of outstanding warrants. |
The officers, directors and affiliated persons of the Company have not purchased any stock in the past year.
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Future dilution
Another important way of looking at dilution is the dilution that happens due to future actions by the company. The investor’s stake in a company could be diluted due to the company issuing additional shares. In other words, when the company issues more shares, the percentage of the company that you own will go down, even though the value of the company may go up. You will own a smaller piece of a larger company. This increase in number of shares outstanding could result from a stock offering (such as an initial public offering, another crowdfunding round, a venture capital round, angel investment), employees exercising stock options, or by conversion of certain instruments (e.g. convertible bonds, preferred shares or warrants) into stock.
If the company decides to issue more shares, an investor could experience value dilution, with each share being worth less than before, and control dilution, with the total percentage an investor owns being less than before. There may also be earnings dilution, with a reduction in the amount earned per share (though this typically occurs only if the company offers dividends, and most early stage companies are unlikely to offer dividends, preferring to invest any earnings into the company).
The type of dilution that hurts early-stage investors most occurs when the company sells more shares in a “down round,” meaning at a lower valuation than in earlier offerings. An example of how this might occur is as follows (numbers are for illustrative purposes only):
| ● | In June 2019 Jane invests $20,000 for shares that represent 2% of a company valued at $1 million. |
| ● | In December the company is doing very well and sells $5 million in shares to venture capitalists on a valuation (before the new investment) of $10 million. Jane now owns only 1.3% of the company but her stake is worth $200,000. |
| ● | In June 2020 the company has run into serious problems and in order to stay afloat it raises $1 million at a valuation of only $2 million (the “down round”). Jane now owns only 0.89% of the company and her stake is worth only $26,660. |
This type of dilution might also happen upon conversion of convertible notes into shares. Typically, the terms of convertible notes issued by early-stage companies provide that in the event of another round of financing, the holders of the convertible notes get to convert their notes into equity at a “discount” to the price paid by the new investors, i.e., they get more shares than the new investors would for the same price. Additionally, convertible notes may have a “price cap” on the conversion price, which effectively acts as a share price ceiling. Either way, the holders of the convertible notes get more shares for their money than new investors. In the event that the financing is a “down round” the holders of the convertible notes will dilute existing equity holders, and even more than the new investors do, because they get more shares for their money. Investors should pay careful attention to the amount of convertible notes that the company has issued (and may issue in the future, and the terms of those notes.
If you are making an investment expecting to own a certain percentage of the company or expecting each share to hold a certain amount of value, it’s important to realize how the value of those shares can decrease by actions taken by the company. Dilution can make drastic changes to the value of each share, ownership percentage, voting control, and earnings per share.
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Plan of Distribution
The Company is offering up to 20,833,333 shares of Non-Voting Common Stock at a price of $3.60 per share, as described in this Offering Circular. The minimum investment is $360.
Commissions and Discounts
The Company has engaged Dalmore Group, LLC (“Dalmore”) a broker-dealer registered with the Commission and a member of FINRA, to perform the following administrative and compliance related functions in connection with this offering, but not for underwriting or placement agent services:
| · | Review investor information, including KYC (“Know Your Customer”) data, perform AML (“Anti Money Laundering”) and other compliance background checks, and provide a recommendation to the Company whether or not to accept an investor as a customer. |
| · | Review each investor’s subscription agreement to confirm such investor’s participation in the offering and provide a determination to the Company whether or not to accept the use of the subscription agreement for the investor’s participation. |
| · | Contact and/or notify the Company, if needed, to gather additional information or clarification on an investor; |
| · | Not provide any investment advice nor any investment recommendations to any investor; |
| · | Keep investor details and data confidential and not disclose to any third-party except as required by regulators or in its performance pursuant to the terms of the agreement (e.g., as needed for AML and background checks); and |
| · | Coordinate with third party providers to ensure adequate review and compliance. |
As compensation for the services listed above, the Company has agreed to pay Dalmore a commission equal to 1% of the amount raised in the offering to support the offering on all newly invested funds after the issuance of a No Objection Letter by FINRA. In addition, the Company has paid Dalmore a one-time advance set up fee of $5,000 to cover reasonable out-of-pocket accountable expenses actually anticipated to be incurred by Dalmore, such as, among other things, preparing the FINRA filing. Dalmore will refund any fee related to the advance to the extent it is not used, incurred or provided to the Company. The Company will also pay a one-time consulting fee of $20,000 which will be after FINRA issues a No Objection Letter and the Commission qualifies the offering. Assuming all of the shares of Non-Voting Common Stock are sold, the Company estimates that total fees due to pay Dalmore, including the advance set up fee, would be $774,999.99 for a fully-subscribed offering.
Forum Selection Provision
The subscription agreement that investors will execute in connection with the offering includes a forum selection provision that requires any claims against the Company based on the agreement to be brought in the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the courts of the Northern District of Oklahoma), for the purpose of any suit, action or other proceeding arising out of or based upon the agreement. Although we believe the provision benefits us by providing increased consistency in the application of Oklahoma law in the types of lawsuits to which it applies and in limiting our litigation costs, to the extent it is enforceable, the forum selection provision may limit investors’ ability to bring claims in judicial forums that they find favorable to such disputes and may discourage lawsuits with respect to such claims. The Company has adopted the provision to limit the time and expense incurred by its management to challenge any such claims. As a company with a small management team, this provision allows its officers to not lose a significant amount of time travelling to any particular forum so they may continue to focus on operations of the Company. Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. We believe that the exclusive forum provision applies to claims arising under the Securities Act, but there is uncertainty as to whether a court would enforce such a provision in this context. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. Investors will not be deemed to have waived the Company’s compliance with the federal securities laws and the rules and regulations thereunder.
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The net proceeds of a fully subscribed offering to the issuer, after total offering expenses, commissions and sales by selling shareholders, will be approximately $67.5 million, after deducting estimated offering expenses of approximately $7.5 million.
The following table breaks down the use of proceeds into different categories under various funding scenarios as follows:
|
25% of Maximum Offering Amount (in millions) |
50% of Maximum Offering Amount (in millions) |
75% of Maximum Offering Amount (in millions) |
Maximum Offering Amount (in millions) | |
| Gross Proceeds to the Company | $18.75 | $37.5 | $56.25 | $75 |
| Estimated offering fees and expenses | $1.88 | $3.75 | $5.63 | $7.5 |
| Net Proceeds | $16.87 | $33.75 | $50.62 | $67.5 |
| BioGTL plants | $15.00 | 20.25 | $30.25 | $30.25 |
| Other capital expenditures | $ -- | $0.50 | $0.50 | $0.50 |
| FlareBuster plant equity | $ -- | $10.0 | $15.0 | $30.0 |
| Business Development | $.50 | $.50 | $1.5 | $2.0 |
| Patents/Legal/Other general and administrative expenses | $0.87 | $1.7 | $1.57 | $2.45 |
| Hiring | $0.20 | $0.50 | $1.5 | $2.0 |
| Expansion of research facility | $0.30 | $0.30 | $0.30 | $0.30 |
| Total net use of proceeds | $16.87 | $33.75 | $50.62 | $67.5 |
Because the offering is a “best efforts” offering, we may close the offering without sufficient funds for all the intended purposes set out above, or even to cover the costs of this offering. In this event the use of proceeds will be adjusted by management based on the amount raised.
The Company reserves the right to change the use of proceeds at management’s discretion.
Based on a fully funded offering the Company plans to use the proceeds to design, fully develop and construct three BioGTL plants and one FlareBuster plant based on our proprietary technology. The BioGTL plants will utilize waste gases from a landfill or a biodigester and will produce approximately 58 barrel per day (“BPD”) each of renewable transportation fuels. The FlareBuster will preferably be sited to utilize low value natural gas or natural gas liquids or otherwise flared gas as a feedstock and will produce approximately 500 BPD of synthetic alternative fuels. The plant investment includes $0.25 million for a process design package for the BioGTL plants and $0.5 million for the FlareBuster. The Company plans to spend $2 million to develop the project sites. This includes renewable product certification, permitting, site specific engineering details for utilities, access, product storage and transportation connections etc. The Company plans to spend $2.0 million for hiring key personnel for project management, operations, accounting and technical support. The Company also plans to spend $0.3 million for upgrading the Company research control system to be compatible with process plant control hardware. The balance of proceeds is $2.45 million that will be used for legal, patents and general corporate purposes.
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Overview
EFT’s mission is to license its proprietary technology for the production of transportation fuels and specialty products from synthesis gas made from any carbonaceous material, including, but not limited to, biomass, biogas, natural gas, MSW, and CO2. EFT also seeks to expand its business model to build own and operate plants using its technology in small pre-engineered plants to convert biogas and natural gas into fuels and chemicals.
EFT was initially formed as a limited liability company under the laws of the State of Oklahoma on November 26, 2007 and was converted to a corporation on October 28, 2010.
Principal Products and Services
EFT has a research and development facility in Tulsa, Oklahoma and a growing patent portfolio with revenue from contract research, license fees and catalyst sales from multiple licensed projects at various stages of development. EFT is focused on using its technology to profitably turn waste sources of carbon into drop-in fuels and chemicals that greatly reduce GHG emissions.
The Company
| · | sells Fischer-Tropsch catalyst, |
| · | provides technology license agreements, |
| · | performs lab and engineering services, and |
| · | plans to build, own and operate BioGTL and Flarebuster plants utilizing our developed technology. |
In general, technology license agreements with clients of the Company provide a license agreement for the use of our intellectual property and catalyst technology, over which the Company holds a significant number of patents.
Current Product and Services Provided to Clients
The Company’s licensing agreements provide for the transfer of licensing rights to proprietary technology, which is considered functional intellectual property. The licensing agreements provide for a prepaid royalty along with ongoing royalties based on output. The prepaid royalty is recognized upon execution of the licensing agreement or based on the timeline specified in the agreement. Typically, the licensing agreements contain a process guarantee to the licensee, which provides that the Company guarantees the output of 100% of the plant design capacity as long as the licensee satisfies certain operational requirements. Failure to achieve the guaranteed output may require the Company to repay a portion of the prepaid royalty based on the percent of design capacity achieved.
As such, the Company defers recognition of a portion of the prepaid royalty until resolution of the process guarantee. The revenue generated by sales of the catalyst is based on a mark-up of the catalyst costs paid to approved catalyst vendors and recognized as obligations are satisfied by those vendors. Revenue from lab and engineering services is earned on a time and materials or percent complete basis and is recognized as the work is performed. Consideration received prior to satisfying the related performance obligations is deferred and revenue will be recognized when the obligations have been met.
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Revenue from the Building, Owning and Operating of Plants Utilizing Funds Provided from this Offering
EFT believes that substantial growth is achievable by using its technology to build, own and operate (“BOO”) renewable fuels and chemical plants, solely or in partnership with others in standardized technology configurations. These configurations are:
| (1) | BioGTL - a very small 58 barrel per day BPD plant that produces renewable diesel or jet fuel from biogas feedstocks. The BioGTL plant is designed to utilize waste gases from landfills, wastewater treatment plants or agricultural digesters. The total resource base in the United States alone is estimated to be large enough to support over 2,000 BioGTL plants. |
| (2) | FlareBuster is a 500 BPD plant designed for conversion of flared natural gas feed with greatly reduced GHG emissions. The FlareBuster can also be configured to make higher value products like solvents and lubricants from flared, stranded or otherwise compromised natural gas. |
These products align with the world’s green energy initiatives by significantly reducing GHG emissions.
Market
The Company is participating in two distinct markets that use products made from its technology: Renewable fuels and flare mitigation. In both markets, the Company’s technology is focused on reducing the total GHG produced from it in the production of synthetic fuels compared to the production of conventional fossil fuels.
At least 64 countries around the world have established targets or mandates for renewable fuels.1 The Company is primarily focused on making renewable fuels for the U.S. market. Renewable fuels made in other countries can be imported into the United States and receive the benefits that are described below. The Company is also focused on making renewable fuels that comply with the California LCFS.
Renewable Fuels Standard (RFS) in the United States
Congress created the renewable fuel standard (“RFS”) program to reduce greenhouse gas emissions and expand the nation’s renewable fuels sector while reducing reliance on imported oil. This program was authorized under the Energy Policy Act of 2005 and expanded under the Energy Independence and Security Act of 2007. (For more information see https://www.epa.gov/renewable-fuel-standard-program/ )
Program Structure
The RFS program was created under the Energy Policy Act of 2005, which amended the CAA. The Energy Independence and Security Act of 2007 (“EISA”) further amended the CAA by expanding the RFS program. The Environmental Protection Agency (“EPA”) implements the program in consultation with U.S. Department of Agriculture and the Department of Energy.
The RFS program is a national policy that requires a certain volume of renewable fuel to replace or reduce the quantity of petroleum-based transportation fuel, heating oil or jet fuel. The four renewable fuel categories under the RFS are:
| · | Biomass-based diesel |
| · | Cellulosic biofuel (Biogas has been determined by the EPA to be “Cellulosic making the Company’s renewable fuels made from biogas qualify as Cellulosic) |
| · | Advanced biofuel |
| · | Total renewable fuel |
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1 https://www.biofuelsdigest.com/bdigest/2016/01/03/biofuels-mandates-around-the-world-2016/
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The 2007 enactment of EISA significantly increased the size of the program and included key changes, including:
| · | Boosting the long-term goals to 36 billion gallons of renewable fuel |
| · | Extending yearly volume requirements out to 2022 |
| · | Adding explicit definitions for renewable fuels to qualify (e.g., renewable biomass, GHG emissions) |
| · | Creating grandfathering allowances for volumes from certain existing facilities |
| · | Including specific types of waiver authorities |
| Volume Standards as Set Forth in EISA | |||||
| Year | Cellulosic Biofuel | Biomass-Based Diesel | Advanced Biofuel | Total Renewable Fuel | "Conventional" Biofuel |
| 2018 | 7.0 | * | 11.0 | 26.0 | 15.0 |
| 2019 | 8.5 | * | 13.0 | 28.0 | 15.0 |
| 2020 | 10.5 | * | 15.0 | 30.0 | 15.0 |
| 2021 | 13.5 | * | 18.0 | 33.0 | 15.0 |
| 2022 | 16.0 | * | 21.0 | 36.0 | 15.0 |
*statute sets 1 billion gallons minimum, but EPA may raise requirement
Note: There is no statutory volume requirement for "conventional" biofuel. The conventional volumes in the table are calculated (total - advanced) and are certain biofuels that do not qualify as advanced.
The Clean Air Act provides EPA authority to adjust cellulosic, advanced and total volumes set by Congress as part of the annual rule process.
The statute also contains a general waiver authority that allows the Administrator to waive the RFS volumes, in whole or in part, based on a determination that implementation of the program is causing severe economic or environmental harm, or based on inadequate domestic supply.
Fuel Pathways
For a fuel to qualify as a renewable fuel under the RFS program, EPA must determine that the fuel qualifies under the statute and regulations. Among other requirements, fuels must achieve a reduction in GHG emissions as compared to a 2005 petroleum baseline.
EPA has approved fuel pathways under the RFS program under all four categories of renewable fuel. Advanced pathways already approved include ethanol made from sugarcane; jet fuel made from camelina; cellulosic ethanol made from corn stover; compressed natural gas from municipal wastewater treatment facility digesters; and others.
Biomass-based diesel must meet a 50% lifecycle GHG reduction. Cellulosic biofuel must be produced from cellulose, hemicellulose, or lignin feedstock and must meet a 60% lifecycle GHG reduction (biogas has been certified as a cellulosic feedstock). Advanced biofuel can be produced from qualifying renewable biomass (except corn starch) and must meet a 50% GHG reduction.
Renewable (or conventional) fuel typically refers to ethanol derived from corn starch and must meet a 20% lifecycle GHG reduction threshold.
Lifecycle GHG reduction comparisons are based on a 2005 petroleum baseline as mandated by EISA. Biofuel facilities (domestic and foreign) that were producing fuel prior to enactment of EISA in 2007 are “grandfathered” under the statute, meaning these facilities are not required to meet the GHG reductions.
EPA continues to review and approve new pathways, including for fuels made with advanced technologies or with new feedstocks. Certain biofuels are similar enough to gasoline or diesel that they do not have to be blended, but can be simply “dropped in” to existing petroleum-based fuels. These drop-in compatible biofuels directly replace petroleum-based fuels and hold particular promise for the future.
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Program Compliance Basics – Renewable Identification Numbers
Obligated parties under the RFS program are refiners or importers of gasoline or diesel fuel. Compliance is achieved by blending renewable fuels into transportation fuel, or by obtaining credits (called “Renewable Identification Numbers”, or RINs) to meet an EPA-specified Renewable Volume Obligation (RVO).
EPA calculates and establishes RVOs every year through rulemaking, based on the CAA volume requirements and projections of gasoline and diesel production for the coming year. The standards are converted into a percentage and obligated parties must demonstrate compliance annually.
Each fuel type is assigned a “D-code” – a code that identifies the renewable fuel type – based on the feedstock used, fuel type produced, energy inputs and GHG reduction thresholds, among other requirements. The four categories of renewable fuel have the following assigned D-codes:
Cellulosic biofuel is assigned a D-code of 3 (e.g., cellulosic biofuel) or D-code of 7 (cellulosic diesel and jet).
The Company expects the RINs generated by its fuels to be certified as D3 or D7.
Biomass-based diesel is assigned a D-code of 4.
Advanced biofuel is assigned a D-code of 5.
Renewable fuel (non-advanced/conventional biofuel) is assigned a D-code of 6 (grandfathered fuels are also assigned a D-code of 6).
“Renewable identification numbers” or RINs are the credits that obligated parties use to demonstrate compliance with the standard. Obligated parties must obtain sufficient RINs for each category in order to demonstrate compliance with the annual standard.
More information on RINs:
RINs are generated when a producer makes a gallon of renewable fuel. One gallon of ethanol generates one RIN. RINs for other fuels are based on the btu content of the fuel compared to the btu content of ethanol. One gallon of renewable diesel made from biogas generates 1.7 D7 RINs because of its higher btu content. One gallon of renewable jet fuel from biogas generates 1.6 D7 RINs. One gallon of gasoline blendstock (naphtha) made from biogas generates 1.45 D3 RINs. The calculations and classifications must be confirmed by the EPA before RINs are issued.
At the end of the compliance year, obligated parties use RINs to demonstrate compliance.
RINs can be traded between parties. Obligated parties can buy gallons of renewable fuel with RINs attached. They can also buy RINs on the market.
Obligated parties can carry over unused RINs between compliance years. They may carry a compliance deficit into the next year. This deficit must be made up the following year.
The RFS program’s four renewable fuel standards are nested within each other. In other words, the fuel with a higher GHG reduction threshold can be used to meet the standards for a lower GHG reduction threshold. For example, fuels or RINs for advanced biofuel (i.e., cellulosic, biodiesel or sugarcane ethanol) can be used to meet the total renewable fuel standards (i.e., corn ethanol).
The table below shows which RIN type and D-code can be used to demonstrate compliance with the four categories of fuel that together comprise an obligated parties’ renewable volume obligation (RVO):
| D-Code | Cellulosic Biofuel | Biomass-Based Diesel | Advanced Biofuel | Total Renewable Fuel |
| 3 | X | X | X | |
| 4 | X | X | X | |
| 5 | X | X | ||
| 6 | X | |||
| 7 | X | X | X |
For cellulosic standards, an additional flexibility is provided. Cellulosic waiver credits (CWC) are offered by EPA at a price determined by formula in the statute. Obligated parties have the option of purchasing CWCs plus an advanced RIN in lieu of blending cellulosic biofuel or obtaining a cellulosic RIN.
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Cellulosic Waiver Credits under the Renewable Fuel Standard Program
Cellulosic fuels have not yet been produced in sufficient amounts to satisfy the volume levels listed in the Clean Air Act. The law allows EPA to reduce the required volume of cellulosic biofuel through waiver. EPA has used this waiver provision each year since 2010.
Under this provision, EPA may reduce the volume of cellulosic RINs required by instead offering obligated parties cellulosic waiver credits (CWCs) at levels no greater than the reduced cellulosic biofuel standard. These waiver credits may be purchased at prices EPA sets using the methodology in the statute. Credits cannot not be traded or banked for future use. They must be used to meet the cellulosic biofuel standard for the year that they are offered.
RIN trading and price information can be found on the EPA website.2
The California LCFS Program
The California Low Carbon Fuel Standard is a market-based program that focuses specifically on reducing carbon intensity of fuels used within California. It was created in 2011 by the California Air Resources Board as part of several AB32 measures to reduce greenhouse gas emissions throughout the state 20% by 2030 and 80% by 2050.
The LCFS program provides several credit generation opportunities to incent production and use of low carbon fuels, increasing attainment of AB32 goals. Below are three ways to generate credits under the LFCS program:
| · | Fuel pathway-based crediting: Low-carbon fuels in the California fuel pool can generate credits based on emissions reduced compared to the established CI baseline. These credits incent developers to bring more clean fuel options to California. |
| · | Project-based crediting: This category includes projects to reduce emissions across the petroleum supply chain as well as carbon capture and sequestration (CCS) using direct air capture. |
| · | Zero-emissions vehicle infrastructure (Capacity-based) crediting: Installation of hydrogen and DC fast charging electric infrastructure can generate credits based on capacity, then credited in accordance to fuel pathways. Infrastructure for zero emission vehicles, especially medium and heavy duty, is limited; these credits compensate for such limited infrastructure. |
Fuel Pathway-Based Crediting:
| · | Each LCFS credit represents one metric ton (MT) of Carbon Dioxide reduced. Credits are generated as fuel is consumed within transportation, specifically when the fuel has a CI score lower than the target established by CARB. Fuels with a CI score higher than the CARB target generate deficits. Deficits need to be offset by generating or purchasing LCFS credits. |
| · | Typically, regulated parties (RPs) such as refiners, petroleum importers and wholesalers are the ones generating credits and/or deficits. Alternative fuel producers can opt-into the program as RPs, if they choose to do so. Each RP along the fuel supply chain can either generate LCFS credits or deficits as they bring fuel into the state of California. |
| · | Carbon Intensity (“CI”) is used to measure all greenhouse gas emissions associated with the production, distribution and consumption of a fuel. Each year new CI benchmarks are set to reach LCFS program goals. The CI score is part of the equation to establish the amount of credits or deficits a fuel can generate. Each fuel has a range of CI scores, shown in the graph below. Markers represent the CI score for certified fuel pathways and the length of each bar represents the range of CI scores that may be achieved by each fuel. CI scores are developed based on life cycle analysis methodology, with varying scores due to feedstock types, origin, raw material processing efficiencies and use within transportation. Lower CI scores are most favorable because they are the cleanest solutions and therefore, awarded the highest LCFS credit values. |
| · | RPs that have generated deficits and not enough credits themselves must then find credits to buy and satisfy their required obligation per CARB. Alternative fuel producers, that typically generate more LCFS credits than needed, sell their credits to RPs using the LCFS Credit Banking and Transfer System, which is a CARB-administered platform. Credit owners can only sell to other RP deficit holders, meaning entities not registered by CARB as a regulated party are not allowed to hold LCFS credits. |
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2 https://www.energy.gov/sites/prod/files/2019/08/f65/Natural%20Gas%20Flaring%20and%20Venting%20Report.pdf
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Flare Reduction
According to the World Bank, about 150 billion cubic meters (BCM) of gas was released into the atmosphere in 2019 from gas flaring (equal to 5,298 billion cubic feet (“BCF”)/year or 14.5 BCF/day). The United States contributed 17.29 BCM or 11.5% of the total). The CO2 emissions from global flaring is estimated to be 307 million tons, the equivalent of over 60 million Internal Combustion Engine passenger vehicles assuming it is 100% combusted. But flaring it is not 100% efficient. When the harmful effects of the methane that slips by the flares are taken into account, the equivalent number jumps to over 560 million passenger vehicles.
All flares vent some portion of methane due to incomplete combustion caused by a variety of factors. This is known as “methane slip.” Methane slip is a significant problem. In countries that flare it is a much bigger contributor to GHG emissions than the CO2 created by the flares. According to the IPCC Fifth Assessment Report, methane has 86 times the Global Warming Potential (GWP) of CO2 (on a mass basis) on a 20-year timescale and 28 times on the 100-year timescale. (Note, the GWP for methane used to be stated as 25. The IPCC Fifth Report has upgraded that estimate to 28.)
In most cases in the United States, flaring occurs because there is no economic use for the gas which is produced in association with oil production. The Company believes that its FlareBuster product offers an economical solution for flared gas in many circumstances. Other uses for flared gas include generation of electricity, conversion to LNG, CNG or certain chemicals. The economic viability of any option tends to be site specific. Flaring in the United States is regulated at both the federal and state level.3
Competition
We are competing on the national and international level with companies who can offer other uses for biogas and flared gas as well as companies who have developed or are developing technologies that produce liquid transportation fuels from these feedstocks and from other renewable feedstocks such as municipal solid waste, biomass, carbon dioxide and other materials. Competitors have developed similar processes to ours including catalytic chemical reactions turning synthesis gas (carbon monoxide and hydrogen) into fuels (liquid hydrocarbons, such as diesel or jet fuel) and providing integrated end-to-end processes that convert solid wastes, first to synthesis gas and then to liquid transport fuels.
There are several large companies who have Fischer-Tropsch technology but are not considered competition to the Company because the companies have not attempted to pursue small scale plant development (under 10,000 BPD). The oldest is Sasol who operates several large-scale gas-to-liquids plants in South Africa and one in Qatar. Shell also operates a large-scale plant in Qatar and another smaller plant in Bintulu Malaysia. Exxon and Chevron have also developed Fischer-Tropsch technology but have not, to date, commercialized it. Johnson Matthey (in partnership with BP) has licensed one plant, Fulcrum Bioenergy a MSW to Fuels plant located near Reno, Nevada. BP is an investor in Fulcrum.
The World Bank, under its Global Gas Flaring Reduction program has, for several years, published data on companies developing and/or offering small scale gas to liquids technology4. The most recent version of that report includes several companies that claim to have commercially ready technology, including EFT. Others included are Velocys, Greyrock, Bluescape Clean Fuels (formerly Primus Green Energy), CompactGTL, Infra Technology, GasTechno, Topsoe/MPS, Maverick Synfuels, AUM Energy and BGTL, along with several others who are still in development. Some of these companies have considerably more financial resources than the Company. The technologies and the type and quality of the products made vary widely.
Other uses for biogas and flared gas are also potential competitors to the Company. These other uses may include, but are not limited to, production of electricity, conversion to LNG or CNG, conversion to methanol, conversion to chemicals and, in the case of biogas, clean up and use as renewable natural gas. Each opportunity for feedstock tends to be evaluated based on which available option will provide the best economic solution at that specific location.
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3https://www.energy.gov/sites/prod/files/2019/08/f65/Natural%20Gas%20Flaring%20and%20Venting%20Report.pdf
4 https://www.worldbank.org/en/programs/gasflaringreduction
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Raw Materials/Suppliers
Porocel Industries and Eurosupport are the two manufacturers that manufacture our proprietary catalyst based upon our specifications. For laboratory work the primary raw materials are gases supplied by Airgas that represents more than 5% of our laboratory expenses. Raw materials are ordered and purchased by our licensees while we coordinate ordering processes.
Employees
The Company employs a staff of seven full-time and two part-time employees.
Regulation
Building commercial plants with our technology is subject to several different environmental laws, regulations and permitting requirements administered by the EPA and the states where our facilities may be located, including Clean Air Act requirements as the production of renewable fuels involves the emission of various airborne pollutants.
Intellectual Property
We currently have 16 issued patents with several more pending and in development. Issued patents include 10,836,963, 10,836,634; 10,815,165; 10,662,382; 10,434,506; 10,434,484; 10,329,492; 9,677,005; 9,676,678; 9,358,526; 9,321,641; 9,180,436; 9,062,257; 9,034,208; 8,894,939 and 8,202,917.
Of the 16 issued patents, 5 are for the Fischer-Tropsch (FT) reactor. The FT reactor and the FT catalyst are at the heart of everything we do. The first three reactor patents (10,836,963; 10,662,382 and 10,434,484) are variations on our preferred reactor type. The variations give us flexibility to design for variables with respect to gas composition that we can encounter in a project.
The other two patents (8,894,939 and 8,202,917) are developmental reactor designs. We have no current plans for these designs. They could be useful in the future or we could license them to others. The FT catalyst patents (9,358,526 and 9,180,436) are used in everything we plan to do. The Catalyst activation/regeneration patent (10,434,506) is used with our FT catalyst in everything we do.
The FT shutdown procedure patent (10,329,492) is used in everything we do. The tailgas recycle patent (9,062,257) helps increase yields and is useful in everything we do.
Litigation
In the normal course of business, the Company may be involved in legal proceedings, claims and assessments arising in the ordinary course of business. Such matters are subject to many uncertainties, and outcomes are not predictable with assurance. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Company’s financial position or results of operations.
The Company’s Property
The Company leases its Tulsa, Oklahoma facility under a lease agreement with an option to purchase, dated August 1, 2020. This option to purchase expires August 1, 2021. Thereafter the landlord grants the Company a thirty day right of first refusal to purchase the property on terms equal or better than terms offered by a purchaser. As of the date of this Offering Circular, the Company has not exercised its option to purchase.
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of our financial condition and results of our operations together with our financial statements and related notes included in this offering Circular. This discussion contains forward-looking statements reflecting our current expectations that involve risks and uncertainties. Actual results and the timing of events may differ materially from those contained in these forward-looking statements due to a number of factors, including those discussed in the section entitled “Risk Factors” and elsewhere in this Offering Circular.
Overview
Emerging Fuels Technology Inc. is an energy technology company with a headquarters, research and development, and lab operating facility located in Tulsa, Oklahoma. The Company has a growing patent portfolio with historic operating revenue from laboratory and engineering services, contract research, technology license fees and catalyst sales from multiple licensed projects at various stages of development. The Company is planning to expand its business by using its technology to build, own and operate facilities to profitably turn waste sources of carbon into drop-in compatible fuels and chemicals that greatly reduce GHG emissions.
There are multiple paths for producing renewable fuels and chemicals. Generally, this conversion takes three steps. Step one is conversion of renewable feedstocks into synthesis gas comprising Carbon Monoxide (CO) and Hydrogen (H2) which is sourced from multiple technology providers in the market. The Company has developed technology for steps two and three of the process to convert this synthesis gas to renewable fuels. This technology has taken years to develop, perfect and position for commercialization and the Company is one of a handful of companies with commercially viable technology.
The Company has developed two new configurations of its technology that significantly expands its commercial opportunities. These configurations are: (1) BioGTL, a small (typically 58 BPD plant that produces renewable diesel or jet fuel from biogas feedstocks and (2) FlareBuster, a 500 BPD plant designed for conversion of flared natural gas feed into alternative transportation fuels which greatly reduces GHG emissions when compared to flaring. The Company believes that since both configurations are highly integrated and modular, the capex is reduced and because of the size, the installation schedule is shorter, compared to projects based on solid renewable feedstocks. The FlareBuster can also be configured to make higher value products like solvents and lubricants from flared, stranded or otherwise compromised natural gas. These products align with the world’s green energy initiatives by significantly reducing GHG emissions.
Currently our licensing business includes a client with a commercial licensed plant in start-up, another licensed plant currently under construction, a third in detailed design and the Company is positioned to be the technology provider to a growing number of renewable fuels projects. The Company believes that substantial growth is achievable by using its BioGTL and FlareBuster technology to build, own and operate renewable fuels and chemical plants, solely or in partnership with others. The Company is raising funds to implement a business plan to expand our renewable/alternative fuels business.
Historically our operating results are most influenced by our revenues from technology license fees and catalyst sales. Technology license and catalyst sales are high margin and can also drive laboratory and engineering services. A large portion of our revenue is generated from a small number of clients with relatively large technology license fees and catalyst sales. The timing of these large technology license fees and catalyst transactions are often unpredictable and make revenues and profits fluctuate. For instance, revenue for licensing, which includes catalyst income, was $52,368 for licensing and catalyst income from one client in 2020, compared to $1,765,359 for licensing and catalyst income from two clients in 2019.
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Critical Accounting Policies and Estimates
The Management Discussion and Analysis of Financial Condition and Results of Operations is based upon our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”). The preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reported period. We base our estimates and assumptions on historical experiences and various other factors that are believed to be reasonable under the circumstances. These estimates and assumptions are evaluated on an ongoing basis. Actual results may differ from previously estimated amounts due to different assumptions or conditions. The following critical accounting policies which involve significant judgements and estimates, are used in the preparation of our financial statements:
Revenue Recognition
The Company generates revenue through contracts in which it (i) sells Fischer-Tropsch catalyst, (ii) provides technology license agreements and (iii) performs lab and engineering services. In general, contracts with the Company provide a license agreement for the use of its intellectual property and catalyst technology, over which the Company holds a significant number of patents. The majority of the Company’s revenue is derived from a small number of significant commercial customers. Revenue is recognized when the Company satisfies a performance obligation by transferring promised goods or services to a customer. Revenue from goods or services is measured as the amount of consideration expected to be received in exchange for the goods and services delivered.
The Company’s licensing agreements provide for the transfer of licensing rights to proprietary technology, which is considered functional intellectual property. The licensing agreements provide for a prepaid royalty along with ongoing royalties based on output. The prepaid royalty is recognized upon execution of the licensing agreement or based on the timeline specified in the agreement. Typically, the licensing agreements contain a process guarantee to the licensee, which provides that the Company guarantees the output of 100% of the plant design capacity as long as the licensee satisfies certain operational requirements. Failure to achieve the guaranteed output may require the Company to repay a portion of the prepaid royalty based on the percent of design capacity achieved. As such, the Company defers recognition of a portion of the prepaid royalty until resolution of the process guarantee. The revenue generated by sales of the catalyst is based on a mark-up of the catalyst costs paid to approved catalyst vendors and recognized as obligations are satisfied by those vendors. Revenue from lab and engineering services is earned on a time and materials or percent complete basis and is recognized as the work is performed. Consideration received prior to satisfying the related performance obligations is deferred and revenue will be recognized when the obligations have been met.
Accounts Receivable and Bad Debts
The Company has receivables that arise from its customer agreements. Losses from uncollectible receivables are accrued when it is probable that a receivable is impaired and the amount of the loss can be reasonably estimated. As of the date of these financial statements, management believes that neither of these conditions exists with regard to receivables and, as such, an allowance for doubtful accounts has not been established.
Long-Lived Assets
The Company assesses all long-lived assets, including property and equipment, for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Factors that are considered in deciding when to perform an impairment review include significant under-performance of the business in relation to expectations, significant negative industry or economic trends, and significant changes or planned changes in the use of the assets.
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Property and Equipment
Property and equipment are recorded at cost and depreciated over the estimated useful life. When retired or otherwise disposed of, the related cost and accumulated depreciation are cleared from the respective accounts and the net difference, less any amount realized from the disposition, is reflected in income.
Patents and Trademarks
Patents and trademarks are recorded at cost less accumulated amortization and impairment losses. Amortization is charged on a straight-line basis over the lesser of 20 years from the date of filing or 17 years from the date of issuance, which is the estimated useful economic life. Useful lives are reviewed annually and adjusted if appropriate.
Income Taxes
Deferred income taxes are provided to reflect the impact of temporary differences between the amounts of assets and liabilities for financial reporting purposes and such amounts as measured by tax laws and regulations. Tax credits are recognized as a reduction to income taxes in the year the credits are earned.
Tax positions are recognized only when it is more likely than not (likelihood of greater than 50%) that the position would be sustained upon examination based solely on the technical merits of the position. Tax positions that meet the more likely than not threshold are measured using a probability-weighted approach as the largest amount of tax benefit that is greater than 50% likely of being realized upon settlement.
Stock-Based Compensation
The Company measures compensation cost for stock option awards at fair value and recognizes compensation over the service period for awards expected to vest. The fair value of each option grant is estimated on the date of grant using the Black-Scholes pricing model and straight-line amortization of compensation expense over the requisite service period of the grant. The determination of fair value using the Black-Scholes model requires a number of complex and subjective variables. Key assumptions in the Black-Scholes pricing model include the market value and exercise price of the options, the expected term, expected volatility, the risk-free interest rate, and estimated forfeitures.
Recent Accounting Pronouncements
In February 2016, the Financial Accounting Standards Board issued Accounting Standards Update (ASU) No. 2016-02, Leases (Topic 842), which establishes new accounting and disclosure requirements for leases. This ASU requires lessees to classify most leases as either finance or operating leases and to initially recognize a lease liability and right-of-use asset. Entities may elect to account for certain short-term leases (with a term of 12 months or less) using a method similar to the current operating lease model. The statements of operations will include, for finance leases, separate recognition of interest on the lease liability and amortization of the right-of-use asset and for operating leases, a single lease cost, calculated so that the cost of the lease is allocated over the lease term on a straight-line basis. ASU No. 2016-02 is effective for the year ending December 31, 2022. The Company is currently assessing the financial impact of this guidance on the financial statements.
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Results of Operations
Year Ended December 31, 2020 Compared to Year ended December 31, 2019
Revenue
The following table summarizes revenues and the percent change to the prior year:
| Year ended December 31, | ||||||||||||
| 2020 | 2019 | % change | ||||||||||
| Revenue | ||||||||||||
| Lab and licensing | $ | 318,539 | $ | 2,640,584 | -88% | |||||||
| Engineering and technical | 460,626 | – | ||||||||||
| Other | 74,967 | 150,810 | -50% | |||||||||
| Total revenue | $ | 854,132 | $ | 2,791,394 | -69% | |||||||
In 2020, revenues were adversely impacted by the global pandemic. Revenues declined 69% when compared to the prior year as prospective developers delayed projects and clients scaled back lab services. Revenue for licensing, which includes catalyst income, was $52,368 for licensing and catalyst income from one client in 2020 compared to $1,765,359 for licensing and catalyst income from two clients in 2019. Lab services income in 2020 was $266,171 and declined from $875,225 in 2019, primarily due the pandemic which caused project delays in 2020 and project completions without renewals from 2019. Engineering revenues in 2020 were attributable to engineering support for a client start-up at a client plant in Trinidad and Tobago. Other revenue decreased 50% in 2020 compared with 2019 primarily as a result of the decline in lab service income and the associated reimbursable cost billings.
Lab and Engineering Costs
The following table summarizes lab and engineering costs and the percent change to the prior year:
| Year ended December 31, | ||||||||||||
| 2020 | 2019 | % change | ||||||||||
| Lab and Engineering Costs | ||||||||||||
| Payroll and benefits | $ | 426,572 | $ | 496,496 | -14% | |||||||
| Subcontracted services | 298,802 | 112,539 | 166% | |||||||||
| Gas costs | 174,157 | 134,144 | 30% | |||||||||
| Other | 34,906 | 49,827 | -30% | |||||||||
| Total lab and engineering cost | $ | 934,437 | $ | 793,006 | 18% | |||||||
Lab and engineering costs are the direct costs associated with our engineering and lab services provided for clients and internal purposes such as research and development activities. The decline in payroll and benefits cost in 2020 when compared to 2019 is attributable to lower average headcount in 2020. The increase in subcontracted services in 2020 when compared to 2019 is caused by increased engineering subcontractor cost of $226,089 that was incurred to support an on-site client start-up at a client plant in Trinidad and Tobago. This increased engineering subcontractor cost was offset by $39,826 in lower lab subcontractor costs attributed to lower lab services income. The increase in gas costs in 2020 when compared to 2019 is attributed to increased gas used for catalyst testing and research activities plus an average increase in gas pricing of 7% in 2020. Other costs declined 30% in 2020 when compared to 2019 primarily attributed to the lower revenue in 2020.
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Operating Expenses
The following table summarizes operating expenses and the percent change to the prior year:
| Year ended December 31, | ||||||||||||
| 2020 | 2019 | % change | ||||||||||
| Operating Expenses | ||||||||||||
| Payroll and benefits | $ | 599,461 | $ | 800,519 | -25% | |||||||
| Stock-based compensation | 314,124 | -100% | ||||||||||
| Contract and professional services | 119,541 | 113,677 | 5% | |||||||||
| Rent | 71,041 | 69,992 | 1% | |||||||||
| Utilities | 41,607 | 45,015 | -8% | |||||||||
| Depreciation and amortization | 43,320 | 62,504 | -31% | |||||||||
| Loss on asset impairment | – | 16,863 | -100% | |||||||||
| Other | 73,072 | 76,263 | -4% | |||||||||
| Total operating expenses | $ | 948,042 | $ | 1,498,957 | -37% | |||||||
Operating expenses declined 37% in 2020 when compared to the prior year, the major factors contributing to this change were:
Payroll and benefits declined $201,058 in 2020 when compared to 2019. This 25% decline is attributed to the termination of an executive officer in September of 2019 which included $61,538 of severance costs.
Stock-based compensation of $314,124 was recognized in 2019 as 89 performance-based options, issued to a member of management, vested based on the completion of certain financing goals. Accordingly, the fair value of those options was recorded as stock-based compensation expense.
Depreciation and amortization declined $19,184 in 2020 when compared to 2019 due to equipment that became fully depreciated in 2019.
During 2019, the Company recognized an impairment loss in the amount of $16,863 for unamortized costs associated with the abandonment of a patent project.
Other Income (Expense)
The following table summarizes other income (expense) and the percent change to the prior year:
| Year ended December 31, | ||||||||||||
| 2020 | 2019 | % change | ||||||||||
| Other Income (Expense) | ||||||||||||
| Gain on forgiveness of loan | $ | 178,185 | $ | – | ||||||||
| Other Expense | (1,131 | ) | (2,003 | ) | -44% | |||||||
| Interest income (expense), net | 1,157 | 4,002 | -71% | |||||||||
| Total other Income (expense) | $ | 178,211 | $ | 1,999 | ||||||||
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During 2020, in response to the potential financial effects resulting from COVID-19 disruptions, the Company applied for a loan through the Paycheck Protection Program (PPP) under the CARES Act. The Company received the loan funding in April 2020 for $177,000. The loan bears interest at a rate of 1% annually. The Company applied for forgiveness of the entire principal amount, plus accrued interest, with the SBA and the SBA granted forgiveness of $178,185 for the loan and all accrued interest in December 2020.
Other Expense are recognized for state franchise costs of $1,131 in 2020 and $2,003 for 2019.
Interest income (expense), net, includes interest income from interest bearing deposit accounts of $4,409 in 2020 and $4,002 in 2019. In 2020, interest income was partially offset by interest expense from the Paycheck Protection Program loan and the SBA’s Economic Injury Disaster Loan (EIDL) assistance program.
Liquidity and Capital Resources
At December 31, 2020, our principal sources of liquidity consisted of cash and cash equivalents of $805,095 and accounts receivable of $129,891. This compares with December 31, 2019 cash and cash equivalents of $280,279 and accounts receivable of $1,404,126.
During 2020, cash flows from operating activities provided $244,970 primarily as a result of collection of the receivables from the large catalyst sales generated in 2019 that were collected in 2020 and debt forgiveness associated with the Paycheck Protection Program loan. In 2019, cash used by operating activities was $266,095 attributed to the increase in receivables from the large catalyst sales generated in 2019 that were not collected until 2020.
Cash used in investing activities for property and equipment purchases and patent and trademark costs were $37,154 in 2020 and $89,915 in 2019. During 2019, equipment additions included $46,346 in spending for a full-size tube reactor for lab testing equipment.
Financing activities during 2020 included the Company applying for and receiving pandemic relief assistance loans of $177,000 from the Paycheck Protection Program forgivable loan and $150,000 from the SBA’s Economic Injury Disaster Loan (“EIDL”) assistance program. Borrowings under this EIDL loan bear interest at 3.75% per annum and are secured by a security interest on all of the Company’s assets. Under this loan, the Company is required to make monthly principal and interest payments of $731 commencing September 2022. All remaining principal and accrued interest is due and payable September 2050. The loan may be repaid at any time without penalty. Additionally, during 2020, the Company acquired 272 shares of the Company’s Common Stock held by the former shareholder that liquidated its business under Chapter 7 of the U.S. Bankruptcy Code for a purchase price of $10,000, which was agreed to by the bankruptcy trustee. The stock is held in treasury and is reported at cost on the balance sheet as of December 31, 2020. In addition, the Company agreed to take possession of all catalyst owned by the former shareholder and customer and assist with identifying buyers for that catalyst. Upon sale of the catalyst, the Company will share any proceeds remaining after payments to suppliers equally with the bankruptcy trustee.
As of June 30, 2021, we have $805,466 in cash and $323,423 in receivables. Historically our operating results and liquidity has been tied to our revenues from technology license fees and catalyst sales. Technology license and catalyst sales are high margin and can drive laboratory and engineering services. A large portion of our revenue is generated from a small number of clients with relatively large technology license fees and catalyst sales. The timing of these large technology license fees and catalyst transactions are often unpredictable and make revenues and profits fluctuate. Previously, the Company’s most recent capital raise was $3.0 million and occurred in December 2015 and the Company has relied on operating results since that last capital transaction.
Currently, clients utilizing our technology have a commercial licensed plant in start-up and another licensed plant is under construction and a third that is in detailed design. When these plants are operational, targeted for 2022, one client has a $3.4 million royalty to be paid over twelve months beginning sixty days after satisfactory completion of a performance test. In addition, these clients’ recurring production royalties are expected to be approximately $40,000 per month.
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In January 2021, the Company applied for and received a Second Draw PPP loan in the amount of $172,600. Subject to the terms and conditions applicable to loans administered by the SBA under the PPP, as amended by the Paycheck Protection Program Flexibility Act of 2020 enacted on June 5, 2020, the unforgiven portion of the PPP loan is payable over a two-year period at an interest rate of 1% annually, with a deferral of payments of principal, interest, and fees until the date on which the SBA conveys the loan forgiveness determination. The Company intends to apply for forgiveness of the entire principal amount, plus accrued interest, with the SBA.
To further address near-term capital needs to support offering costs, the Company is currently offering interested accredited investors the opportunity to participate in a convertible balloon loan with a principal of up to $750,000 and annual interest of 10% and a one (1) year term whereby on the maturity date the investor will have the option to (i) receive a balloon payment for the total amount of the investor’s principal amount invested plus interest or (ii) forgive the balloon loan and receive shares of EFT Non-Voting Common Stock at a conversion rate of 1 share for each $0.50 of the investor’s principal plus interest.
Furthermore, the Company is offering interested accredited investors the opportunity to receive warrants to purchase EFT Non-Voting Common Stock at a rate of 1 warrant for each $0.50 of the principal amount of the above-referenced balloon loan with an exercise price of $0.50 per share and a ten (10)-year term.
With the completion of this offering, the Company believes that substantial growth is possible by using its BioGTL and FlareBuster technology to build, own and operate renewable fuels and chemical plants, solely or in partnership with others. Possible profits generated by operating BioGTL and FlareBuster plants, when combined with royalties from licensing our technologies and catalyst sales provide the Company the opportunity to have recurring revenues and sustainable operations.
Trend Information
Interest in renewable fuels has been increasing over the last year. The Company has experienced a higher level of inquiries from project developers to license our technology for biomass to liquid fuels and CO2 to fuels projects. We expect this trend to continue for the foreseeable future. Our BioGTL plant design gives the Company another entry into the renewable fuels space. The increased interest in renewable fuels is also causing an increase in activity in our research lab associated with our licensee projects or potential licensee projects.
Relaxed Ongoing Reporting Requirements
If we become a public reporting company in the future, we will be required to publicly report on an ongoing basis as an “emerging growth company” (as defined in the Jumpstart Our Business Startups Act of 2012, which we refer to as the JOBS Act) under the reporting rules set forth under the Exchange Act. For so long as we remain an “emerging growth company”, we may take advantage of certain exemptions from various reporting requirements that are applicable to other Exchange Act reporting companies that are not “emerging growth companies”, including but not limited to:
| ● | not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act; |
| ● | taking advantage of extensions of time to comply with certain new or revised financial accounting standards; |
| ● | being permitted to comply with reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements; and |
| ● | being exempt from the requirement to hold a non-binding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. |
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If we become a public reporting company in the future, we expect to take advantage of these reporting exemptions until we are no longer an emerging growth company. We would remain an “emerging growth company” for up to five years, although if the market value of our Common Stock that is held by non-affiliates exceeds $700 million as of any June 30 before that time, we would cease to be an “emerging growth company” as of the following December 31.
If we do not become a public reporting company under the Exchange Act for any reason, we will be required to publicly report on an ongoing basis under the reporting rules set forth in Regulation A for Tier 2 issuers. The ongoing reporting requirements under Regulation A are more relaxed than for “emerging growth companies” under the Exchange Act. The differences include, but are not limited to, being required to file only annual and semiannual reports, rather than annual and quarterly reports. Annual reports are due within 120 calendar days after the end of the issuer’s fiscal year, and semiannual reports are due within 90 calendar days after the end of the first six months of the issuer’s fiscal year.
In either case, we will be subject to ongoing public reporting requirements that are less rigorous than Exchange Act rules for companies that are not “emerging growth companies”, and our shareholders could receive less information than they might expect to receive from more mature public companies.
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DIRECTORS, EXECUTIVE OFFICERS AND SIGNIFICANT EMPLOYEES
The Company’s officers and directors are as follows.
| Name | Position | Age | Term of Office (if indefinite give date appointed) | Approximate hours per week (if part-time/full-time) | ||||
| Executive Officers: | ||||||||
| Kenneth L. Agee | President | 64 | Since 10/29/2010 | 40 | ||||
| Mark A. Agee | VP Business Development | 68 | Since 04/29/2014 | 40 | ||||
| Edwin L. Holcomb Jr. | Chief Accounting Officer | 63 | Since 07/27/2017 | 40 | ||||
| Directors: | ||||||||
| Kenneth L. Agee | Chairman | 64 | Since 10/29/2010 | 4 | ||||
| Edwin L. Holcomb Jr. | Director | 63 | Since 08/03/2015 | 4 | ||||
| Katie Marie Werner | Director | 44 | Since 05/11/2021 | 1 | ||||
| Raymond Lee Witten | Director | 66 | 10/14/2014-10/04/2016; 04/18/2017 to present | 1 | ||||
| Terry Lee Ingle | Director | 68 | Since 02/28/2012 | 1 | ||||
| Significant Employees: | ||||||||
| Gary Ronald Young | Manager of Laboratory Services | 46 | Since 01/11/2008 | 40 | ||||
| James William Engman | Manager of Technical Services | 72 | Since 01/11/2008 | 30 | ||||
Kenneth L. Agee, Founder, President and Director, has a background in crude oil refining and natural gas processing. In 1984, he formed Syntroleum Corporation a publicly traded company where he held the position of CEO and did extensive GTL development with several large oil companies between 1990 and 2007. In 2007, Mr. Agee formed EFT where he has worked to establish a growing contract research and technology licensing business while developing novel approaches to FT catalysis, reactor design, process integration and product upgrading that will significantly reduce the construction and operating cost of small, modular plants. Mr. Agee holds a degree in Chemical Engineering from Oklahoma State University and is listed on 26 issued U.S. patents and 3 pending patents. Kenneth Agee is the brother of Mark Agee.
Mark A. Agee, VP of Business Development, has spent his entire career growing technology companies, from start-up through IPO, having taken two companies public. Mr. Agee was one of the original investors in Syntroleum, founded by his brother Kenneth Agee in 1984. Ten years later, he joined the Company as VP of Finance and later became its President/COO. During his tenure with Syntroleum, he negotiated several partnerships, joint R&D agreements and license agreements with 7 international oil companies. He led Syntroleum’s public offering in 2000. Mr. Agee’s involvement with EFT began in 2010 where he has focused primarily on business development, strategy and licensing. He holds a degree in chemical engineering from the University of Tulsa and is listed on 10 issued U.S. patents all in the field of synthetic or renewable fuels.
Edwin L. Holcomb Jr., Chief Accounting Officer and Director, has eight years of public accounting and 31 years of corporate finance experience. He has held positions of VP of Finance, Chief Accounting Officer, and Controller prior to joining EFT and has over 10 years directing the SEC reporting at Docucorp International, EXE Technologies and Memorex Telex. Mr. Holcomb is a CPA and holds a BSBA degree majoring in Accounting from the University of Tulsa.
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Ronnie Young, Lab Manager, joined the Company from Syntroleum Corporation where he was a supervisory chemist. Mr. Young has a background in oil and gas production and farming/ranching. While earning a M.S. in Chemistry from the University of Oklahoma, Mr. Young gained applicable experience in the synthesis, handling, and characterization techniques for air and moisture sensitive materials. As the lab manager for the Company, Mr. Young continues to direct lab operations which have expanded beyond small scale to various pilot plant reactor designs and capabilities. Additionally, Mr. Young has worked to make improvements in Fischer-Tropsch catalyst formulation, preparation, and characterization methods in support of two commercial catalyst manufacturers.
James W. Engman, Technical Services Manager, joined the Company from Syntroleum Corporation and has spent over 20 years working in the laboratory supporting the development of FT catalyst and related process technologies. Mr. Engman has managed the catalyst development laboratory for both Syntroleum and the Company. Mr. Engman has provided technical support for both our FT reactor and catalyst development activities and our extensive hydro-processing development activities. This included developing catalyst and process parameters for production of jet, diesel, solvents and base oils. Prior to his work in the FT, Mr. Engman was the Laboratory Director for National Analytical Laboratories an environmental testing service laboratory. Mr. Engman holds a B.S. in Biochemistry from the University of Minnesota and an M.S. in Chemistry from St. Mary’s University of Texas.
Terry L. Ingle, Director, is the President and part owner of Mingo Manufacturing Inc. in Owasso, Oklahoma. Mr. Ingle has held that position 20 of the past 23 years. Mingo Manufacturing is an engineering and machine shop with heavy emphasis in the design and manufacture of downhole submersible and surface mounted oil pumping equipment. Mingo Manufacturing has been in business since 1981. Mr. Ingle’s main duty is to oversee the day-to-day operations of the Company. Mr. Ingle graduated from Oklahoma State University in 1978 with a Bachelor of Science degree in Mechanical Engineering Design Technology.
Ray L. Witten, Director, is the Vice President and part owner of Mingo Manufacturing Inc. in Owasso, Oklahoma. Mr. Witten has held that position for the last 40 years. Mingo Manufacturing is an engineering and machine shop with heavy emphasis in the design and manufacture of downhole submersible and surface mounted oil pumping equipment. Mingo Manufacturing Inc. has been in business since 1981. Mr. Witten oversees the design and production of new product lines for Mingo Manufacturing. Mr. Witten graduated from Oklahoma State University in 1979 with a Bachelor of Science degree in Mechanical Engineering Design Technology.
Katie M. Werner, Director, is the Director of Strategic Planning of the Black & Veatch Gas, Fuels and Chemicals Business. Ms. Werner is an Associate Vice-President at Black & Veatch who oversees operations, strategy and human resources for Black & Veatch’s global Gas, Fuels and Chemicals. Ms. Werner graduated from University of Mississippi with a Bachelor of Science degree in Civil Engineering.
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COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS
For the fiscal year ended December 31, 2020 we compensated our three highest-paid directors and executive officers as follows:
| Name | Capacities in which compensation was received | Cash compensation ($) | Other compensation ($) | Total compensation ($) | ||||
| Kenneth L. Agee | President | 220,000 | 0 | 220,000 | ||||
| Mark A. Agee | VP Business Development | 200,000 | 0 | 200,000 | ||||
| Edwin L. Holcomb Jr. | Chief Accounting Officer | 95,000 | 0 | 95,000 |
For the fiscal year ended December 31, 2020, our directors were not paid any compensation for their services. There are five (5) directors in this group.
Each of the Company’s officers have entered into employment agreements with the Company. Under his employment agreement, Ken Agee is paid a salary of $220,000. He is eligible to receive performance bonuses. Any bonus will be based on the achievement of goals and milestones established by the Company’s board of directors. In the event that his employment is terminated other than for cause or his resignation, he is eligible to receive severance of 3 months’ salary and benefits and any amounts of compensation not yet paid at the date of termination. In the event of a change of control of the Company (as defined in the agreement), if his employment is terminated for any reason other than death, disability, retirement, just cause or Good Reason (as defined in the agreement), he is eligible to receive severance of up to 18 months’ salary. In either instance of termination, he is also eligible to be paid a pro rata portion of any bonus determined by the board of directors, in its sole discretion, to be paid to employees for the year in which the termination occurred.
Under his employment agreement, Mark Agee is paid a starting salary of $200,000. He is eligible to receive performance bonuses. Any bonus will be based on the achievement of goals and milestones established by the Company’s board of directors. In the event that his employment is terminated other than for cause or his resignation, he is eligible to receive severance of 3 months’ salary and benefits. In the event of a change of control of the Company (as defined in the agreement), if his employment is terminated for any reason other than death, disability, retirement, just cause or Good Reason (as defined in the agreement), he is eligible to receive severance of up to 18 months’ salary. In either instance of termination, he is also eligible to be paid a pro rata portion of any bonus determined by the board of directors, in its sole discretion, to be paid to employees for the year in which the termination occurred.
Under his employment agreement, Ed Holcomb is currently paid a salary of $95,000 that is not reflected in the employment agreement, but agreed to between Mr. Holcomb and the Company. He is eligible to receive performance bonuses. Any bonus will be based on the achievement of goals and milestones established by the Company’s board of directors. In the event that his employment is terminated other than for cause or his resignation, he is eligible to receive severance of 3 months’ salary and benefits. In the event of a change of control of the Company (as defined in the agreement), if his employment is terminated for any reason other than death, disability, retirement, just cause or Good Reason (as defined in the agreement), he is eligible to receive severance of up to 18 months’ salary. In either instance of termination, he is also eligible to be paid a pro rata portion of any bonus determined by the board of directors, in its sole discretion, to be paid to employees for the year in which the termination occurred.
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SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN SECURITYHOLDERS
The following table displays, as of July 22, 2021, after giving effect to the Stock Split, the voting securities beneficially owned by (1) any individual director or officer who beneficially owns more than 10% of any class of our capital stock, (2) all executive officers and directors as a group and (3) any other holder who beneficially owns more than 10% of any class of our capital stock:
| Title of class | Name and address of beneficial owner | Amount and nature of beneficial ownership | Amount and nature of beneficial ownership acquirable (4) | Percent of class (1) | ||||
| Common Stock | The Kenneth L. Agee Trust dated May 18, 2007 (2) 13137 South Yorktown Avenue, Bixby, OK 74008 | 12,000,000.00 | 43.87% | |||||
| Common Stock | Rafael Luis Espinoza 5026 Oak Leaf Drive, Tulsa, OK 74131 | 5,930,000.00 | 21.68% | |||||
| Common Stock | Kym Brian Arcuri (deceased) 9427 E. 54th St., Suite A, Tulsa, OK 74145 | 5,370,000.00 | 19.63% | |||||
| Common Stock | All current officers and directors as a group (6 people) | 16,002,941.40 | 2,810,000.00 | 67.17% | ||||
| Series A Preferred Stock | Black & Veatch Corp. (“B&V”) (3) 11401 Lamar Ave., Overland Park, KS 66211 | 3,766,588.20 | 100% | |||||
| Series A Preferred Stock | All current officers and directors as a group (6 people) | 0 | 0 | 0% |
| (1) | The final column (Percent of Class) includes a calculation of the amount the person owns now, plus the amount that person is entitled to acquire. That amount is then shown as a percentage of the outstanding number of securities in that class if no other people exercised their rights to acquire those securities. The result is a calculation of the maximum amount that person could ever own based on their current and acquirable ownership, which is why the amounts in this column will not add up to 100%. |
| (2) | Mr. Agee is a trustee of the trust and may be deemed to beneficially own the shares held by the trust. |
| (3) | Ms. Werner, an officer of B&V and a member of our board of directors who serves as B&V’s designee, does not individually own any securities of the Company and disclaims beneficial ownership of such shares held by B&V. |
| (4) | Does not include 500,000 and 500,000 options held by officers that will vest if the Company raises more than $15 million and $30 million, respectively, in this offering. |
| 38 |
INTEREST OF MANAGEMENT AND OTHERS IN CERTAIN TRANSACTIONS
B&V:
B&V owns all (100%) of the Company’s Series A Preferred Stock.
On December 2, 2015, the Company and B&V entered into a Stock Purchase Agreement under which EFT sold the Series A Preferred Stock to B&V. Under the Stock Purchase Agreement, B&V has a put option that it may exercise at any time on or after the fifth anniversary of the agreement (or December 2, 2020). B&V can require the Company to repurchase all of the Series A Preferred Stock from B&V at a per share price based on the Company’s then-current enterprise value.
On May 11, 2021, the Company and B&V entered into a further agreement to extend the date upon which B&V could exercise such put option from December 2, 2020 to December 2, 2022; provided, however, if the Company does not close on a minimum of $15,000,000 of additional capital on or before June 30, 2022, then B&V may exercise such put option immediately or at any time thereafter. In addition, under the agreement, the Company must (i) pay dividends to B&V under certain circumstances (see “Shares Being Offered – Series A Preferred Stock”) and (ii) use B&V as its engineering, procurement, and construction contractor on all of the Company’s micro-GTL (BioGTL) projects under certain circumstances for a period of 5 years (or until May 11, 2026).
On December 2, 2015, the Company and B&V entered into the First Amended and Restated Collaboration Agreement under which (among other things and subject to other terms and conditions) (i) the Company will recommend only B&V for engineering, procurement and construction services related to projects that utilize the Company’s technology, (ii) the Company will grant to B&V the right to represent the Company’s technology on a worldwide basis and (iii) the Company will use B&V for fabrication and/or fabrication management services to provide pre-engineered truckable skids and/or modules (subject to the Company’s agreement with Mingo GTL, LLC). The term of this agreement is for a period of 10 years from the effective date (or until December 2, 2025).
Mingo GTL, LLC:
Mingo GTL, LLC (“Mingo”) is controlled by Terry Ingle and Ray Witten, each a shareholder and director of the Company. On March 11, 2016, the Company and Mingo entered into the Third Amended and Restated Manufacturing and Technical Support Agreement under which (among other things and subject to certain terms and conditions) (i) Mingo will provide certain support services to the Company pertaining to any advanced fixed bed items (including, module, reactors, or components or any assemblies or parts therefor) and (ii) Mingo will have the option to manufacture certain advanced fixed bed items (including, module, reactors, or components or any assemblies or parts therefor). The term of this agreement is for a period of 10 years following the date on which the Company provides an engagement notice to Mingo with automatic 5-year renewal terms unless terminated by either party upon 30 days’ prior written notice to the other party; provided, however, if the Company has never provided an engagement notice to Mingo, then the term of the agreement is for a period of 10 years from the effective date (or until March 11, 2026). To date, the Company has not provided an engagement notice to Mingo.
| 39 |
General
The Company is offering up to 20,833,333 shares of Non-Voting Common Stock. The following description summarizes important terms of the Company's capital stock. This summary does not purport to be complete and is qualified in its entirety by the provisions of the Second Amended and Restated Certificate of Incorporation, as amended, to be filed with the Oklahoma Secretary of State, and the company’s Bylaws, copies of which have been filed as exhibits 2.1 and 2.2 to the Offering Statement of which this Offering Circular is a part.
For a complete description of the Company’s capital stock, you should refer to the Company’s Second Amended and Restated Certificate of Incorporation, as amended, and bylaws, and applicable provisions of the Oklahoma General Corporation Act.
The authorized capital stock of the Company consists of 3 classes designated, respectively, Common Stock, $0.000001 par value per share, Non-Voting Common Stock, par value $0.000001 per share and Preferred Stock, $0.000001 par value per share. On July 20, 2021, the Company effected a 10,000-for-1 split of its outstanding Common Stock and Preferred Stock, and also designated a new class of Common Stock – Non-Voting Common Stock (the “Stock Split”). Upon the filing of the Second Amended and Restated Certificate of Incorporation, the authorized capital stock of the Company will consist of 110,000,000 shares of Common Stock, 110,000,000 shares of Non-Voting Common Stock, and 20,000,000 shares of Preferred Stock, of which 6,280,000 have been designated as Series A Convertible Participating Preferred Stock (“Series A Preferred Stock”) and 13,720,000 are undesignated. As of the date of this Offering Circular, the outstanding capital stock includes 27,352,941.40 shares of Common Stock and 3,766,588.20 shares of Series A Preferred Stock. As of June 30, 2021, the total number of shares subject to awards under the 2013 Equity Award Plan was 1,470,000, after giving effect to the Stock Split.
Common Stock
Voting Rights
Holders of shares of Common Stock are entitled to one (1) vote for each share on all matters submitted to a vote of the shareholders, including the election of directors. Holders of Non-Voting Common Stock, which is being offering in this offering, have no voting rights, except as required by law.
Dividend Rights
Holders of Common Stock are entitled to receive dividends, if and when as may be declared payable by the board of directors from time to time from funds for payment of dividends. Except as required by the terms of the Series A Preferred Stock, the Company has never declared or paid cash dividends on any of its capital stock and currently does not anticipate paying any cash dividends after this offering or in the foreseeable future.
Liquidation Rights
Holders of Common Stock are entitled to liquidation payments after holders of the Preferred Stock have been paid in full from any remaining available assets of the Company. Any payments will be distributed among the holders of shares of Common Stock, pro rata based on the number of shares held by each such holder.
Rights and Preferences
Except as set forth in the Shareholders Agreement, holders of our Common Stock have no preemptive, conversion, or other rights, and there are no redemptive or sinking fund provisions applicable to the Common Stock.
| 40 |
Series A Preferred Stock
Voting Rights
Each holder of Series A Preferred Stock is entitled to one vote for each share of Common Stock into which such share of Series A Preferred Stock could be converted. Holders of Series A Preferred Stock are entitled to vote on all matters submitted to a vote of the shareholders, including the election of directors, as a single class with the holders of Common Stock, on an as converted to Common Stock basis.
Dividend Rights
Holders of Series A Preferred Stock are entitled to receive dividends, if and when as may be declared payable by the board of directors from time to time from funds for payment of dividends. The Company has never declared or paid cash dividends on any of its capital stock and currently does not anticipate paying any cash dividends after this offering or in the foreseeable future.
No dividend may be declared, nor may another distribution be made, on shares of Common Stock or on any shares of Preferred Stock that rank junior to the Series A Preferred Stock until holders of the Series A Preferred Stock have been paid a cumulative per share amount of dividends equal to $0.796477 (as adjusted for any stock combinations or splits), which is the adjusted per share purchase price paid to the Company for the Series A Preferred Stock (the “Per Share Purchase Price”), which totals $3 million.
Conversion Rights
Shares of Series A Preferred Stock are convertible, at the option of the holder, at any time, into fully paid and nonassessable shares of the Company’s Common Stock at the then-applicable conversion rate. Initially, the conversion rate for the Series A Preferred Stock is one share of Common Stock per share of Series A Preferred Stock. The conversion rate is subject to adjustment in the event any stock combinations or splits.
Additionally, each share of Series A Preferred Stock will automatically convert into Common Stock immediately prior to the closing of a firm commitment underwritten public offering of Common Stock, registered under the Securities Act or once the holders of Series A Preferred Stock have been paid a cumulative dividends equal to the Per Share Purchase Price.
Liquidation Rights
Upon the voluntary or involuntary dissolution, winding up or liquidation of the Company, holders of the Series A Preferred Stock will be entitled to receive, from the assets of the Company available for distribution to shareholders, an amount equal to the Per Share Purchase Price for each outstanding share of Series A Preferred held less the cumulative amount of any dividends previously received (the “Liquidation Amount”). If the Company’s assets are insufficient to pay the full Liquidation Amount, the holders of Series A Preferred Stock and Preferred Stock, if any, ranking equal to the Series A Preferred Stock will share ratably in the distribution of any assets of the Company.
Shareholders Agreement
The Company and all of its Common Stock and Series A Preferred Stock shareholders are parties to the Shareholders Agreement under which (among other things) each of The Kenneth L. Agee Trust, B&V, Terry Ingle, and Ray Witten is entitled to designate one person to the Company’s board of directors and all such Common Stock and Series A Preferred Stock shareholders have agreed to vote for such designees. The Company grants the parties to the Shareholders Agreement preemptive rights prior to the consummation of any proposed issuance or sale by the Company of any shares of its capital stock, including any treasury shares, except in the event that (i) the Company issues any Non-Voting Common Stock or any Common Stock upon the conversion of any Non-Voting Common Stock or Preferred Stock or (ii) the Company issues any capital stock, or options, pursuant to the 2013 Equity Award Plan and/or pursuant to any subsequently approved equity compensation plan approved by a majority of the directors of the Company. The parties to the Shareholders Agreement have also agreed to certain restrictions on transfer of their securities and to tag-along rights in the event of certain permitted transfers.
| 41 |
ONGOING REPORTING AND SUPPLEMENTS TO THIS OFFERING CIRCULAR
We will be required to make annual and semi-annual filings with the Commission. We will make annual filings on Form 1-K, which will be due by the end of April each year and will include audited financial statements for the previous fiscal year. We will make semi-annual filings on Form 1-SA, which will be due by September 28 each year, which will include unaudited financial statements for the six months to June 30. We will also file a Form 1-U to announce important events such as the loss of a senior officer, a change in auditors or certain types of capital-raising. We will be required to keep making these reports unless we file a Form 1-Z to exit the reporting system, which we will only be able to do if we have less than 300 shareholders of record and have filed at least one Form 1-K.
At least every 12 months, we will file a post-qualification amendment to the Offering Statement of which this Offering Circular forms a part, to include the Company’s recent financial statements.
We may supplement the information in this Offering Circular by filing a Supplement with the Commission.
All these filings will be available on the Commission’s EDGAR filing system. You should read all the available information before investing.
| 42 |
TABLE OF CONTENTS
| 43 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders
Emerging Fuels Technology, Inc.
Opinion on the Financial Statements
We have audited the accompanying balance sheets of Emerging Fuels Technology, Inc. (the Company) as of December 31, 2020 and 2019, and the related statements of operations, stockholders’ equity, and cash flows for the years then ended, and the related notes (collectively referred to as the "financial statements"). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of its operations and its cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and the significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing separate opinions on the critical audit matter or on the accounts or disclosures to which it relates.
Revenue Transactions and improper revenue recognition
Significant judgment is exercised by the Company in determining revenue recognition for its customer agreements. Given these factors and due to the number of significant transactions, the related audit effort in evaluating management’s judgments in determining revenue recognition for these customer agreements was extensive and required a high degree of auditor judgment.
/s/ M&K CPAS, PLLC
M&K CPAS, PLLC
We have served as the Company’s auditor since 2021
Houston, TX
| August 2, 2021 |
| F-1 |
Emerging Fuels Technology, Inc.
December 31, 2020 and 2019
| 2020 | 2019 | |||||||
| ASSETS | ||||||||
| Current assets | ||||||||
| Cash | $ | 805,095 | $ | 280,279 | ||||
| Accounts receivable | 129,891 | 1,404,126 | ||||||
| Gas inventory | 10,739 | 15,030 | ||||||
| Prepaid expenses | 9,559 | 2,013 | ||||||
| Total current assets | 955,284 | 1,701,448 | ||||||
| Property and equipment, net | 140,494 | 154,935 | ||||||
| Intangible assets, net | 176,205 | 167,930 | ||||||
| Other assets | 36,403 | 8,745 | ||||||
| Total assets | $ | 1,308,386 | $ | 2,033,058 | ||||
| LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) | ||||||||
| Current liabilities | ||||||||
| Accounts payable | $ | 66,286 | $ | 91,588 | ||||
| Accrued expenses | 59,922 | 23,906 | ||||||
| Deferred revenue | – | 25,250 | ||||||
| Total current liabilities | 126,208 | 140,744 | ||||||
| Deferred revenue | 605,750 | 605,750 | ||||||
| Debt | 150,000 | – | ||||||
| Total liabilities | 881,958 | 746,494 | ||||||
| Commitments and contingencies | ||||||||
| Preferred stock, par value $.000001 per share; 20,000,000 shares authorized; 3,766,588 shares issued and outstanding in 2020 and 2019 | 3,000,000 | 3,000,000 | ||||||
| Stockholders' equity (deficit) | ||||||||
| Common stock, par value $.000001 per share; 110,000,000 shares authorized; 30,073,029 shares issued and 27,352,941 outstanding in 2020; 30,073,029 shares issued and outstanding in 2019 | 32 | 32 | ||||||
| Additional paid in capital | 9,323,803 | 9,323,803 | ||||||
| Treasury stock, at cost; 2,720,088 and 0 shares in 2020 and 2019, respectively | (10,000 | ) | – | |||||
| Accumulated deficit | (11,887,407 | ) | (11,037,271 | ) | ||||
| Total stockholders' equity (deficit) | (2,573,572 | ) | (1,713,436 | ) | ||||
| Total liabilities and stockholders' equity (deficit) | $ | 1,308,386 | $ | 2,033,058 | ||||
See Notes to Financial Statements
| F-2 |
Emerging Fuels Technology, Inc.
For the Years Ended December 31, 2020 and 2019
| 2020 | 2019 | |||||||
| Revenue | ||||||||
| Lab and licensing | $ | 318,539 | $ | 2,640,584 | ||||
| Engineering and technical | 460,626 | – | ||||||
| Other | 74,967 | 150,810 | ||||||
| Total revenue | 854,132 | 2,791,394 | ||||||
| Lab and Engineering Costs | ||||||||
| Payroll and benefits | 426,572 | 496,496 | ||||||
| Subcontracted services | 298,802 | 112,539 | ||||||
| Gas costs | 174,157 | 134,144 | ||||||
| Other | 34,906 | 49,827 | ||||||
| Total lab and engineering costs | 934,437 | 793,006 | ||||||
| Operating Expenses | ||||||||
| Payroll and benefits | 599,461 | 800,519 | ||||||
| Stock-based compensation | – | 314,124 | ||||||
| Contract and professional services | 119,541 | 113,677 | ||||||
| Rent | 71,041 | 69,992 | ||||||
| Utilities | 41,607 | 45,015 | ||||||
| Depreciation and amortization | 43,320 | 62,504 | ||||||
| Loss on asset impairment | – | 16,863 | ||||||
| Other | 73,072 | 76,263 | ||||||
| Total operating expenses | 948,042 | 1,498,957 | ||||||
| Income (Loss) from Operations | (1,028,347 | ) | 499,431 | |||||
| Other Income (Expense) | ||||||||
| Gain on forgiveness of loan | 178,185 | – | ||||||
| Other expense | (1,131 | ) | (2,003 | ) | ||||
| Interest income (expense), net | 1,157 | 4,002 | ||||||
| Total other income (expense) | 178,211 | 1,999 | ||||||
| Net income (loss) | $ | (850,136 | ) | $ | 501,430 | |||
| Net income (loss) per common share - basic | $ | (0.03 | ) | $ | 0.02 | |||
| Net income (loss) per common share - diluted | $ | (0.03 | ) | $ | 0.01 | |||
| Weighted average number of common shares outstanding: | ||||||||
| Basic | 29,707,866 | 30,073,029 | ||||||
| Diluted | 29,707,866 | 35,209,617 | ||||||
See Notes to Financial Statements
| F-3 |
Emerging Fuels Technology, Inc.
Statements of Changes in Stockholders' Equity (Deficit)
For the Years Ended December 31, 2020 and 2019
| Common Shares | Common Stock | Additional Paid-in Capital | Treasury Stock | Accumulated Deficit | Total | Mezzanine Equity | ||||||||||||||||||||||
| Balances - January 1, 2019 | 30,073,029 | $ | 32 | $ | 9,009,679 | $ | – | $ | (11,538,701 | ) | $ | (2,528,990 | ) | $ | 3,000,000 | |||||||||||||
| Stock-Based Compensation | – | – | 314,124 | – | – | 314,124 | – | |||||||||||||||||||||
| Net Income for the Year Ended December 31, 2019 | – | – | – | – | 501,430 | 501,430 | – | |||||||||||||||||||||
| Balances - December 31, 2019 | 30,073,029 | 32 | 9,323,803 | – | (11,037,271 | ) | (1,713,436 | ) | 3,000,000 | |||||||||||||||||||
| Purchase of Treasury Stock | (2,720,088 | ) | – | – | (10,000 | ) | – | (10,000 | ) | – | ||||||||||||||||||
| Net Loss for the Year Ended December 31, 2020 | – | – | – | – | (850,136 | ) | (850,136 | ) | – | |||||||||||||||||||
| Balances - December 31, 2020 | 27,352,941 | $ | 32 | $ | 9,323,803 | $ | (10,000 | ) | $ | (11,887,407 | ) | $ | (2,573,572 | ) | $ | 3,000,000 | ||||||||||||
See Notes to Financial Statements
| F-4 |
Emerging Fuels Technology, Inc.
For the Years Ended December 31, 2020 and 2019
| 2020 | 2019 | |||||||
| Cash Flows From Operating Activities | ||||||||
| Net (loss) income | $ | (850,136 | ) | $ | 501,430 | |||
| Adjustments to reconcile net (loss) income to net cash provided by (used in) operating activities: | ||||||||
| Gain on forgiveness of loan | (178,185 | ) | – | |||||
| Loss on asset impairment | – | 16,863 | ||||||
| Depreciation and amortization | 43,320 | 62,504 | ||||||
| Stock-based compensation | – | 314,124 | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | 1,274,235 | (1,375,912 | ) | |||||
| Gas inventory | 4,291 | (10,976 | ) | |||||
| Prepaid expenses | (7,546 | ) | 2,868 | |||||
| Other assets | (27,658 | ) | (473 | ) | ||||
| Accounts payable | (25,302 | ) | 46,760 | |||||
| Accrued expenses | 37,201 | (39,908 | ) | |||||
| Deferred revenues | (25,250 | ) | 216,625 | |||||
| Net cash provided by (used in) operating activities | 244,970 | (266,095 | ) | |||||
| Cash Flows From Investing Activities | ||||||||
| Purchase of property and equipment | (18,796 | ) | (60,780 | ) | ||||
| Patent and trademark costs | (18,358 | ) | (29,135 | ) | ||||
| Net cash used in investing activities | (37,154 | ) | (89,915 | ) | ||||
| Cash Flows From Financing Activities | ||||||||
| Proceeds from note payable | 150,000 | – | ||||||
| Proceeds from PPP loan | 177,000 | – | ||||||
| Purchase of treasury stock | (10,000 | ) | – | |||||
| Net cash provided by financing activities | 317,000 | – | ||||||
| Increase (decrease) in cash | 524,816 | (356,010 | ) | |||||
| Cash and Cash Equivalents-Beginning | 280,279 | 636,289 | ||||||
| Cash and Cash Equivalents-Ending | $ | 805,095 | $ | 280,279 | ||||
| Supplemental Disclosures: | ||||||||
| Cash paid for interest | $ | – | $ | – | ||||
See Notes to Financial Statements
| F-5 |
EMERGING FUELS TECHNOLOGY, INC.
DECEMBER 31, 2020 AND 2019
Note 1 Summary of Significant Accounting Policies
Nature of Business
Emerging Fuels Technology, Inc. (the Company) is a well-established energy technology company with a research and development facility in Tulsa, Oklahoma. The Company has a growing portfolio of 19 granted or pending patents and trademarks with revenue from contract research, license fees and catalyst sales from multiple licensed projects at various stages of development. The Company is focused on using its technology to reduce greenhouse gas emissions and produce low carbon fuels and chemicals.
Subsequent Events
In preparing the financial statements, the Company has evaluated events and transactions for potential recognition or disclosure through August 2, 2021, the date that the financial statements were available to be issued. No other subsequent events other than those disclosed at Note 16.
Basis of Accounting
The Company reports on the accrual basis of accounting which recognizes income when earned and expenses when incurred.
Management Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Concentration of Credit Risk
The Company’s financial instruments that are exposed to concentrations of credit risk consist primarily of cash and accounts receivable. The Company maintains cash in bank deposit accounts which, at times, may exceed federally insured limits. The Company has not experienced any losses in such accounts and believes that it is not exposed to any significant credit risk with respect to cash. The Company also routinely assesses the financial strength of its customers and, as a consequence, believes that the accounts receivable credit risk exposure is limited.
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents.
Accounts Receivable and Bad Debts
The Company has receivables that arise from its customer agreements. Losses from uncollectible receivables are accrued when it is probable that a receivable is impaired and the amount of the loss can be reasonably estimated. As of the date of these financial statements, management believes that neither of these conditions exists with regard to receivables and, as such, an allowance for doubtful accounts has not been established.
| F-6 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 1 Summary of Significant Accounting Policies - Continued
Long-Lived Assets
The Company assesses all long-lived assets, including property and equipment, for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Factors that are considered in deciding when to perform an impairment review include significant under-performance of the business in relation to expectations, significant negative industry or economic trends, and significant changes or planned changes in the use of the assets.
Property and Equipment
Property and equipment are recorded at cost and depreciated over the estimated useful life. When retired or otherwise disposed of, the related cost and accumulated depreciation are cleared from the respective accounts and the net difference, less any amount realized from the disposition, is reflected in income.
Depreciation is provided for on the straight-line method over the following estimated useful lives:
| Years | |||
| Lab Equipment | 7 | ||
| Office Furniture and Equipment | 5 | ||
| Computers | 3 |
Patents and Trademarks
Patents and trademarks are recorded at cost less accumulated amortization and impairment losses. Amortization is charged on a straight-line basis over the lesser of 20 years from the date of filing or 17 years from the date of issuance, which is the estimated useful economic life. Useful lives are reviewed annually and adjusted if appropriate.
Income Taxes
Deferred income taxes are provided to reflect the impact of temporary differences between the amounts of assets and liabilities for financial reporting purposes and such amounts as measured by tax laws and regulations. Tax credits are recognized as a reduction to income taxes in the year the credits are earned.
Tax positions are recognized only when it is more likely than not (likelihood of greater than 50%) that the position would be sustained upon examination based solely on the technical merits of the position. Tax positions that meet the more likely than not threshold are measured using a probability-weighted approach as the largest amount of tax benefit that is greater than 50% likely of being realized upon settlement.
Stock-Based Compensation
The Company measures compensation cost for stock option awards at fair value and recognizes compensation over the service period for awards expected to vest. The fair value of each option grant is estimated on the date of grant using the Black-Scholes pricing model and straight-line amortization of compensation expense over the requisite service period of the grant. The determination of fair value using the Black-Scholes model requires a number of complex and subjective variables. Key assumptions in the Black-Scholes pricing model include the market value and exercise price of the options, the expected term, expected volatility, the risk-free interest rate, and estimated forfeitures.
| F-7 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 1 Summary of Significant Accounting Policies - Continued
Advertising
The Company expenses all advertising costs as incurred.
Fair Value of Financial Instruments
The carrying amounts of financial instruments, including cash and cash equivalents, accounts receivable, accounts payable, and debt borrowings approximates fair value due to the nature and maturity of these instruments.
Earnings Per Share
Basic earnings per share is calculated using the weighted-average number of shares of common stock outstanding during the period. Diluted earnings per share calculations include any dilutive effect of potential common shares. The computation of diluted earnings per share for the year ended December 31, 2020 excluded the impact of the assumed conversion of the Series A preferred stock, and the assumed exercise of warrants and stock options, because they would have been anti-dilutive. The earnings per share data presented in the statements of operations reflects the effect of a 10,000 to 1 stock split approved in July 2021 (see Note 16).
Recent Accounting Pronouncements
In February 2016, the Financial Accounting Standards Board issued Accounting Standards Update (ASU) No. 2016-02, Leases (Topic 842), which establishes new accounting and disclosure requirements for leases. This ASU requires lessees to classify most leases as either finance or operating leases and to initially recognize a lease liability and right-of-use asset. Entities may elect to account for certain short-term leases (with a term of 12 months or less) using a method similar to the current operating lease model. The statements of operations will include, for finance leases, separate recognition of interest on the lease liability and amortization of the right-of-use asset and for operating leases, a single lease cost, calculated so that the cost of the lease is allocated over the lease term on a straight-line basis. ASU No. 2016-02 is effective for the year ending December 31, 2022. The Company is currently assessing the financial impact of this guidance on the consolidated financial statements.
Note 2 Revenue Recognition
The Company generates revenue through contracts in which it (i) sells Fischer-Tropsch catalyst, (ii) provides technology license agreements and (iii) performs lab and engineering services. In general, contracts with the Company provide a license agreement for the use of its intellectual property and catalyst technology, over which the Company holds a significant number of patents. The majority of the Company’s revenue is derived from a small number of significant commercial customers. Revenue is recognized when the Company satisfies a performance obligation by transferring promised goods or services to a customer. Revenue from goods or services is measured as the amount of consideration expected to be received in exchange for the goods and services delivered.
The Company’s licensing agreements provide for the transfer of licensing rights to proprietary technology, which is considered functional intellectual property. The licensing agreements provide for a prepaid royalty along with ongoing royalties based on output. The prepaid royalty is recognized upon execution of the licensing agreement or based on the timeline specified in the agreement. Typically, the licensing agreements contain a process guarantee to the licensee, which provides that the Company guarantees the output of 100% of the plant design capacity as long as the licensee satisfies certain operational requirements. Failure to achieve the guaranteed output may require the Company to repay a portion of the prepaid royalty based on the percent of design capacity achieved. As such, the Company defers recognition of a portion of the prepaid royalty until resolution of the process guarantee. The revenue generated by sales of the catalyst is based on a mark-up of the catalyst costs paid to approved catalyst vendors and recognized as obligations are satisfied by those vendors. Revenue from lab and engineering services is earned on a time and materials or percent complete basis and is recognized as the work is performed. Consideration received prior to satisfying the related performance obligations is recorded as deferred revenue and revenue will be recognized when the obligations have been met.
| F-8 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 3 Property and Equipment
Property and equipment consisted of the following at December 31:
| 2020 | 2019 | |||||||
| Lab Equipment | $ | 771,630 | $ | 753,835 | ||||
| Office Furniture and Equipment | 105,896 | 105,529 | ||||||
| Computers | 26,353 | 25,719 | ||||||
| 903,879 | 885,083 | |||||||
| Less: Accumulated Depreciation | (763,385 | ) | (730,148 | ) | ||||
| Property and Equipment, Net | $ | 140,494 | $ | 154,935 | ||||
Depreciation expense amounted to $33,237 and $53,290 for the years ended December 31, 2020 and 2019, respectively.
Note 4 Intangible Assets
Intangible assets consisted of the following at December 31:
| 2020 | 2019 | |||||||
| Patents and Trademarks | $ | 221,344 | $ | 202,986 | ||||
| Less: Accumulated Amortization | (45,139 | ) | (35,056 | ) | ||||
| Intangible Assets, Net | $ | 176,205 | $ | 167,930 | ||||
Amortization expense amounted to $10,083 and $9,214 for the years ended December 31, 2020 and 2019, respectively. Amortization expense for each of the next five years will be approximately $12,700. An impairment loss in the amount of $16,863 was recognized in 2019 for unamortized costs associated with the abandonment of a patent project.
Note 5 Debt
On September 3, 2020, the Company entered into a loan authorization and agreement with the United States Small Business Administration (SBA), as lender, pursuant to the SBA’s Economic Injury Disaster Loan (EIDL) assistance program in light of the impact of the COVID-19 pandemic on the Company’s business. Borrowings under this loan are $150,000 and bear interest at 3.75% per annum. The loan is secured by a security interest on all of the Company’s assets. Under this loan, the Company is required to make monthly principal and interest payments of $731 commencing September 2022. All remaining principal and accrued interest is due and payable September 2050. The loan may be repaid at any time without penalty.
| F-9 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 5 Debt - Continued
Estimated maturities on the above obligation are as follows:
| December 31, | 2021 | $ | – | ||
| 2022 | – | ||||
| 2023 | 2,212 | ||||
| 2024 | 3,286 | ||||
| 2025 | 3,411 | ||||
| Thereafter | 141,091 | ||||
| $ | 150,000 |
Note 6 Income Taxes
The current tax expense relates to state taxes. The differences between income taxes computed using the statutory U.S. federal income tax rate and the effective rate is primarily due to state taxes and the effect of the valuation allowance.
The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and liabilities as of December 31 are as follows:
| 2020 | 2019 | |||||||
| Depreciation | $ | (26,563 | ) | $ | (26,241 | ) | ||
| Stock-Based Compensation | 170,903 | 170,903 | ||||||
| Patents | (45,355 | ) | (43,225 | ) | ||||
| Deferred Revenue | 155,920 | 162,419 | ||||||
| Net Operating Losses | 2,631,045 | 2,357,712 | ||||||
| 2,885,950 | 2,621,568 | |||||||
| Valuation Allowance | (2,885,950 | ) | (2,621,568 | ) | ||||
| Net Noncurrent Deferred Tax Asset | $ | – | $ | – | ||||
The Company has performed the required assessment of positive and negative evidence regarding the realization of deferred tax assets. This assessment included the evaluation of scheduled reversals of deferred income tax assets and liabilities and estimates of projected future taxable income.
| F-10 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 6 Income Taxes - Continued
In assessing the realizability of deferred tax assets, the Company considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Based on the Company’s historical net losses, management did not believe that it was more likely than not that the Company would realize the benefits of these deferred tax assets as of December 31, 2020 and 2019 and, accordingly, a full valuation allowance was recorded against the deferred tax assets.
As of December 31, 2020, the Company has federal and state net operating loss carryforwards of approximately $10.2 million to offset future taxable income, which expire beginning in 2031.
The Company files a U.S. federal income tax return for which the statute of limitations remains open for the 2017 tax year and beyond. U.S. state jurisdictions have statutes of limitations ranging from 3 to 6 years.
Note 7 Stock Option Plan
The Company has an equity award plan (the Plan), which allows for the grant of equity-based compensation awards to management, key employees and non-employee directors. Under the Plan, the Company is authorized to grant up to 7,030,000 equity awards. The Company has issued stock options under the Plan which contain certain vesting requirements based on service or the achievement of certain performance goals. Included in outstanding options as of December 31, 2020 and 2019 are 890,000 performance-based options issued to a member of management, which vest based on the completion of certain financing goals. Management determined that the performance objectives were achieved during 2019 and the related options became fully vested. Accordingly, the fair value of those options in the amount of $314,124 was recorded as stock-based compensation expense during 2019.
There were no equity awards during 2020 and 2019. There were 1,470,000 stock options outstanding and exercisable as of December 31, 2020 and 2019 with a weighted-average exercise price per share of $0.8557 and a weighted-average remaining contractual life of 2.5 years.
Note 8 Preferred Stock
The Company entered into a stock purchase agreement dated December 2, 2015, whereby the Company issued 3,766,588.2 shares of Series A Convertible Participating Preferred Stock (Series A Stock), par value $0.000001 per share, for a purchase price of $3,000,000 or $0.796477 per share.
The stock purchase agreement provided that the shareholder shall have the right to require the Company to repurchase all or a portion of its Series A shares at any time on or after the fifth anniversary of the issuance of the shares. This put option originally terminated no later than 10 years after issuance. In May 2021, the stock purchase agreement was amended to change the put option right to any time on or after the seventh anniversary of the issuance of the shares, unless the Company does not complete a funding raise of at least $15 million on or before June 30, 2022 in which case the put option timeframe reverts back to the fifth anniversary. In addition, the term of the put option was extended from 10 years to 12 years after issuance.
| F-11 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 8 Preferred Stock - Continued
The holders of the Series A Stock are entitled to receive dividends, if and when declared payable. No dividends shall be paid or declared on shares of common stock or any other shares of preferred stock having preferential rights to dividends ranking junior to the rights of the Series A Stock until the holders of shares of Series A Stock have been paid a cumulative per share amount in dividends equal to the original per share purchase price.
In connection with the May 2021 amendment, the Company agreed to pay to the Series A shareholder a dividend of 30% of the unencumbered royalties, as defined. This dividend will cease upon the earlier of the following: (i) payment of cumulative dividends equal to the original purchase price, (ii) the termination of the put option, (iii) the conversion of all Series A shares to shares of common stock.
In the case of liquidation, before any payment is made to the holders of shares of common stock, the holders of shares of the Series A Stock shall be entitled to receive the original per share purchase price less cumulative paid dividends. Any residual assets will be shared ratably between the holders of the Series A Stock, common stockholders and any other series of preferred stock.
The holders of the Series A Stock shall have the right to convert the shares into common stock at a rate of one-to-one.
Holders of the Series A Stock shall be entitled to a Board seat and shall have the right to vote on all matters submitted to a vote of shareholders and shall be entitled to that number of votes equal to the number of shares of common stock into which such holder’s shares of Series A Stock could be converted.
The Series A preferred stock shares are accounted for outside of permanent equity due to the terms of the repurchase provision of the preferred stock.
Note 9 Shareholder Transaction
During 2020, a former shareholder and customer of the Company liquidated its business under Chapter 7 of the U.S. Bankruptcy Code. In connection with this liquidation, the Company repurchased 272 shares of the Company’s common stock held by the former shareholder for a purchase price of $10,000, which was agreed to by the bankruptcy trustee. The stock is held in treasury, with shares presented on the balance sheet and statements of changes in stockholders’ equity (deficit) on a post-split basis, and is reported at cost on the balance sheet as of December 31, 2020.
In addition, the Company agreed to take possession of all catalyst owned by the former shareholder and customer and assist with identifying buyers for that catalyst. Upon sale of the catalyst, the Company will share any proceeds remaining, after payments to suppliers, equally with the bankruptcy trustee.
| F-12 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 10 Warrants
The Company issued stock purchase warrants to certain shareholders in connection with the sale of common and preferred stock. The warrants entitle the holder to purchase shares of common stock at a price per share specified in the warrant agreement. As of December 31, 2020 and 2019, warrants to purchase 1,240,000 shares of common stock were outstanding with a weighted-average exercise price per share of $1.30. The warrants expire in 2024.
Note 11 Major Customers
During the year ended December 31, 2020, approximately 59% of the Company’s sales were derived from one customer. As of December 31, 2020, accounts receivable from this customer totaled approximately $49,000. During the year ended December 31, 2019, approximately 79% of the Company’s sales were derived from three customers. As of December 31, 2019, accounts receivable from two of these customers totaled approximately $1,079,000 and $292,000, respectively.
Note 12 Operating Lease
The Company leases its Tulsa, Oklahoma facility. The lease arrangement was amended effective August 1, 2020 and requires monthly rent payments through July 31, 2023. The Company leased this facility on a month-to-month basis for 2019 and 2020, prior to executing the amendment. In addition, the Company has several other month-to-month leases.
Total rent expense incurred for the years ended December 31, 2020 and 2019 was approximately $71,000 and $70,000, respectively.
Minimum future annual rental payments due under the operating leases, excluding the month-to-month leases, are as follows:
| December 31, | 2021 | $ | 64,574 | ||
| 2022 | 65,316 | ||||
| 2023 | 38,101 | ||||
| Total | $ | 167,991 |
Note 13 Retirement Plan
The Company sponsors a defined contribution plan (the Plan) designed to meet the requirements of Section 401(k) of the Internal Revenue Code. The Plan is subject to the provisions of the Employee Retirement Income Security Act of 1974 (ERISA) and covers substantially all of its employees. Employees who are eligible to participate in the Plan are able to make employee contributions. There were no employer contributions to the Plan during the years ended December 31, 2020 and 2019.
| F-13 |
EMERGING FUELS TECHNOLOGY, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2020 AND 2019
Note 14 COVID-19 Impact
In March 2020, the coronavirus outbreak was declared to be a pandemic. Actions taken around the world to help mitigate the spread of the coronavirus include restrictions on travel, quarantines in certain areas, and forced closures for certain types of public places and businesses. The coronavirus and actions taken to mitigate it have had and are expected to continue to have an adverse impact on the economies and financial markets of many countries, including the geographical area in which the Company operates. While it is unknown how long these conditions will last and what the complete financial effect will be to the Company, the Company may experience disruptions to their business, customers and suppliers, which could negatively impact the Company’s operating results in future periods.
In response to the potential financial effects resulting from these disruptions, the Company applied for a loan through the Paycheck Protection Program (PPP) under the CARES Act. The Company received the loan funding in April 2020 for $177,000. The loan bears interest at a rate of 1% annually. The Company applied for forgiveness of the entire principal amount, plus accrued interest, with the SBA and the SBA granted forgiveness of the loan and all accrued interest in December 2020.
Note 15 Commitments and Contingencies-Legal Items
In the normal course of business, the Company may be involved in legal proceedings, claims and assessments arising in the ordinary course of business. Such matters are subject to many uncertainties, and outcomes are not predictable with assurance. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Company’s financial position or results of operations.
Note 16 Subsequent Events
In January 2021, the Company applied for and received a Second Draw PPP loan in the amount of $172,600. Subject to the terms and conditions applicable to loans administered by the SBA under the PPP, as amended by the Paycheck Protection Program Flexibility Act of 2020 enacted on June 5, 2020, the unforgiven portion of the PPP loan is payable over a two-year period at an interest rate of 1% annually, with a deferral of payments of principal, interest, and fees until the date on which the SBA conveys the loan forgiveness determination. The Company intends to apply for forgiveness of the entire principal amount, plus accrued interest, with the SBA.
On July 20, 2021, the Company effected a 10,000 to 1 stock split of its common stock and preferred stock. On the effective date of the stock split, (i) each share of common and preferred stock was increased to 10,000 shares; (ii) the number of shares of common stock into which each outstanding warrant or stock option to purchase common stock is exercisable were proportionately increased on a 10,000 to 1 basis; and (iii) the exercise price of each outstanding warrant or option to purchase common stock were proportionately decreased on a 1 to 10,000 basis. All share numbers, share prices, and exercises prices have been adjusted, on a retroactive basis, to reflect this stock split.
On July 20, 2021, the Company approved the following matters: (a) the number of authorized shares of common stock was increased to 110,000,000; (b) the number of authorized shares of preferred stock was increased to 20,000,000; (c) a new class of non-voting common stock was approved with authorized shares equal to 110,000,000; (d) performance-based stock options to acquire 1,200,000 shares of common stock at a per share exercise price of $0.5045 were granted to two members of management.
| F-14 |
PART III
INDEX TO EXHIBITS
| 2.1 | Second Amended and Restated Certificate of Incorporation, as amended* | |
| 2.2 | Bylaws | |
| 3.1 | Sixth Amended and Restated Shareholders Agreement | |
| 3.2 | Stock Purchase Agreement dated December 2, 2015, as amended | |
| 4.1 | Form of Subscription Agreement* | |
| 6.1 | Broker Agreement with Dalmore Group, LLC | |
| 6.2 | Employment Agreement of Kenneth Agee | |
| 6.3 | Employment Agreement of Mark Agee | |
| 6.4 | Employment Agreement of Edwin Holcomb | |
| 6.5 | 2013 Equity Award Plan, as amended | |
| 8 | Form of Escrow Agreement* | |
| 11 | Auditor’s Consent | |
| 12 | Opinion of Covey Law Firm, PLLC* | |
| 13 | Testing the waters materials* |
*To be filed by amendment.
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SIGNATURES
Pursuant to the requirements of Regulation A, the issuer certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form 1-A and has duly caused this offering statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on August 2, 2021.
EMERGING FUELS TECHNOLOGY, INC.
By /s/ Kenneth L. Agee
Name: Kenneth L. Agee
Title: President
This offering statement has been signed by the following persons in the capacities and on the dates indicated.
/s/ Kenneth L. Agee
Name: Kenneth L. Agee
Title: President and Director
Date: August 2, 2021
/s/ Edwin L. Holcomb Jr.
Name: Edwin L. Holcomb Jr.
Title: Chief Accounting Officer, principal financial officer and Director
Date: August 2, 2021
/s/ Terry L. Ingle
Name: Terry L. Ingle
Title: Director
Date: August 2, 2021
/s/ Raymond L. Witten
Name: Raymond L. Witten
Title: Director
Date: August 2, 2021
/s/ Katie M. Werner
Name: Katie M. Werner
Title: Director
Date: August 2, 2021
| 16 |
EXHIBIT 2.2
Emerging Fuels Technology, Inc.
An Oklahoma Corporation
THIRD AMENDED AND RESTATED BYLAWS
ARTICLE 1
OFFICES
Section 1.1 Principal Place of Business. The principal place of business of Emerging Fuels Technology, Inc. (the “Corporation”) shall be at 6024 South 116th East Avenue, Tulsa, Oklahoma 74146 or such other place as is designated by the Corporation’s board of directors (the “Board of Directors” or the “Board”).
Section 1.2 Other Offices. The Corporation may have other offices at such places, both within and outside the State of Oklahoma, as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
Section 2.1 Location of Meetings. Any meeting of the shareholders for the election of directors or for any other purpose may be held at such time and place, within or outside the State of Oklahoma, as shall be stated in the notice of the meeting or in a duly executed waiver of notice hereof.
Section 2.2 Annual Meeting. An annual meeting of shareholders shall be held on the second Tuesday of May, commencing in 2011, at the principal place of business of the Corporation in the State of Oklahoma, or on such other date and at such other place as the Board of Directors may specify, within or outside the State of Oklahoma, at which meeting the shareholders entitled to vote shall elect a Board of Directors and shall transact such other business as may properly be brought before the meeting. The candidates receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors.
Section 2.3 Notice of Annual Meeting. Written notice stating the time and place of the annual meeting shall be given to each shareholder entitled to vote thereat at least ten (10) days (but no more than sixty (60) days) before the date of the meeting.
Section 2.4 Shareholders Entitled to Vote. The officer who has charge of the stock transfer books of the Corporation shall prepare and make a complete record of the shareholders entitled to vote at each meeting of the shareholders, arranged in alphabetical order with the address of and the number of shares held by each. Such record shall be open to examination at the Corporation’s principal place of business by any shareholder for any purpose germane to the meeting for ten (10) days prior to the meeting during ordinary business hours. Such record shall be open to examination by any shareholder, for any purpose germane to the meeting, at the time and place of the meeting during the whole time thereof, which time and place shall be specified in the notice of the meeting.
Section 2.5 Special Meetings. A special meeting of the shareholders, for any purpose or purposes, unless otherwise provided by statute or by the Corporation’s certificate of incorporation (the “Certificate of Incorporation”), may be called by the Board of Directors and shall be called by the president or secretary at the request in writing of shareholders owning at least thirty-three percent (33%) in amount of all of the stock of the Corporation issued and outstanding and entitled to vote at such meeting. Such request shall state the purpose or purposes of the proposed meeting.
Section 2.6 Notice of Special Meetings. Written notice of a special meeting of shareholders, stating in reasonable detail the time, place and purposes thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days (but no more than sixty (60) days) before the date fixed for the meeting.
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Section 2.7 Limitation on Special Meetings. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.
Section 2.8 Quorum. The holders of a majority of the stock issued and outstanding and entitled to vote on any matter to be considered thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, a majority of the shareholders entitled to vote on any matter to be considered thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time for an aggregate period not in excess of thirty (30) days, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed.
Section 2.9 Required Vote. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power with respect to each question, present in person or represented by proxy, shall decide such question brought before such meeting, unless the question is one upon which, by express provision of statute or of the Certificate of Incorporation or the Corporation’s bylaws (“Bylaws”), a different vote is required, in which case such express provision shall govern and control the decisions of such question.
Section 2.10 Voting Rights / Proxy. Each shareholder shall at every meeting of the shareholders be entitled to one (1) vote in person or by proxy for each share of the capital stock having voting power held by such shareholder, except as may otherwise be specified by the Certificate of Incorporation. The Board of Directors may establish such reasonable record dates for determining shareholders entitled to notice of a meeting and to vote thereat, and for other purposes, as may be consistent with applicable law, as contemplated by Section 7.5 hereof. No proxy shall be effective unless in writing and in compliance with (i) applicable law and (ii) such reasonable requirements as the Board of Directors may prescribe. All elections of directors shall be by written ballot. Unless demanded by a shareholder present in person or by proxy at any meeting of the shareholders and entitled to vote thereat, or unless so directed by the chairman of the meeting, the vote thereat on any question (other than the election of directors) need not be by ballot. If such demand or direction is made, a vote by ballot shall be taken, and each ballot shall be signed by the shareholder voting, or by his or her proxy, and shall state the number of shares voted.
Section 2.11 Written Consent to Action. Any action required or permitted to be taken at a meeting of shareholders may be effected by an instrument in writing setting forth such action, executed by shareholders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote thereon were present, except as to the election of directors which requires unanimous written consent in certain circumstances pursuant to Oklahoma Statutes, Title 18, Section 1056(B)(1). Such instrument shall be delivered to the Corporation and filed with the minutes maintained for meetings of shareholders and a copy thereof shall be delivered to each of the applicable shareholders who did not consent in writing to such action.
ARTICLE 3
DIRECTORS
Section 3.1 Board of Directors. The business and affairs of the Corporation shall be managed by its Board of Directors, which may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the shareholders.
Section 3.2 Number, Tenure and Qualifications. The number of directors shall be fixed from time to time by resolution of the Board of Directors within the limits (if any) prescribed by the Certificate of Incorporation. The directors shall be elected at the annual meeting of shareholders, or by unanimous written consent of shareholders (in accordance with Section 2.11 hereof), except as provided in Section 3.4 hereof; and each director elected shall hold office until his successor is elected or until his earlier death, resignation or removal. Directors need not be shareholders. Subject to the limitations imposed by applicable law, the holders of a majority of the shares then entitled to vote at an election of directors may remove a director or directors (or all directors) at any time, with or without cause.
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Section 3.3 Resignation. Any director may resign at any time by giving written notice of his resignation to the Corporation. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, it shall take effect immediately upon its receipt by the president or the secretary; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.4 Vacancies. Vacancies, by death, resignation, removal or otherwise, and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors, or the sole remaining director, then in office, though less than a quorum; and the director(s) so chosen shall hold office until the next election of directors when their successor(s) are duly elected, or until his earlier death, resignation or removal.
Section 3.5 Meetings of the Board of Directors. The Board of Directors may hold meetings, both regular and special, either within or outside the State of Oklahoma; and such meetings may be held by means of conference telephone or other similar communications equipment by means of which all persons participating in the meeting can hear or otherwise communicate with each other. Participation in a meeting pursuant to such communication shall constitute presence in person at such meeting.
Section 3.6 First Meeting of Newly Elected Board of Directors. The first meeting of each newly elected Board of Directors shall be held at the same place as, and immediately after, the annual meeting of shareholders. No notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting provided a quorum shall be present. In the event such meeting is not held at such time and place, or in the event a unanimous written consent of shareholders shall be filed in lieu of the annual meeting of shareholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the directors.
Section 3.7 Notice of Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board.
Section 3.8 Notice of Special Meetings. Special meetings of the Board of Directors may be called by the president and shall be called by the secretary upon the written request of a majority of the Board of Directors. Notice of special meetings of the Board of Directors shall be given to each director at least forty-eight (48) hours before the time of the meeting.
Section 3.9 Quorum / Required Vote. At all meetings of the Board, a majority of the total number of directors then set shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except, in either event, as may be otherwise specifically provided by statute or by the Certificate of Incorporation or these Bylaws. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed.
Section 3.10. Limitations on Authority. In addition to any vote or consent of the Board or the shareholders of the Corporation required by applicable law, without the approval of the Board, the Corporation shall not and shall not enter into any commitment to:
(a) amend, modify or waive the Certificate of Incorporation or By-laws;
(b) (i) make any material change to the nature of the business conducted by the Corporation, or (ii) enter into any business other than the business currently being conducted by the Corporation;
(c) adopt or modify in any material respect an annual budget, operating budget or business plan for the Corporation;
(d) (i) issue or sell common stock or other equity securities of the Corporation to any person or (ii) enter into or effect any transaction or series of related transactions involving the repurchase, redemption or other acquisition of common stock from any person;
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(e) incur any indebtedness, pledge or grant liens on any assets or guarantee, assume, endorse or otherwise become responsible for the obligations of any other person in excess of $250,000 in a single transaction or series of related transactions;
(f) make any loan, advance or capital contribution to any person in excess of $100,000;
(g) appoint or remove the Corporation’s auditors or make any material changes in the accounting methods or policies of the Corporation as currently being conducted by the Corporation;
(h) enter into, amend in any material respect, waive or terminate any related party Agreement other than related party agreements that are on an arm’s length basis and on terms no less favorable to the Corporation than those that could be obtained from an unaffiliated third party;
(i) enter into or effect any transaction or series of related transactions involving the purchase, lease, license, exchange or other acquisition (including by merger, consolidation, acquisition of stock or acquisition of assets) by the Corporation of any assets and/or equity interests of any person in excess of $250,000 in a single transaction or series of related transactions;
(j) enter into or effect any transaction or series of related transactions in excess of $250,000 involving the sale, lease, license, exchange or other disposition (including by merger, consolidation, sale of stock or sale of assets) by the Corporation of any assets, other than sales of inventory, services and licenses in the ordinary course of business consistent with past practice;
(k) establish a subsidiary or enter into any joint venture or similar business arrangement;
(l) enter into or amend any material term of (i) any employment agreement or arrangement with any officer, (ii) the compensation (including salary, bonus, deferred compensation or otherwise) or benefits of any officer, (iii) any stock option, employee stock purchase or similar equity-based plans, (iv) any benefit, severance or other similar plan or (v) any annual bonus plan or any management equity plan;
(m) settle any lawsuit, action, dispute or other proceeding or otherwise assume any liability with a value in excess of $250,000 or agree to the provision of any equitable relief by the Company;
(n) appoint or remove (with or without cause) any officer;
(o) initiate or consummate an initial public offering or make a public offering and sale of common stock or any other securities;
(p) make any investments in any other Person in excess of $250,000; or
(q) dissolve, wind-up or liquidate the Corporation or initiate a bankruptcy proceeding involving the Corporation.
Section 3.11 Written Consent to Action. Any action required or permitted to be taken at a meeting of directors may be effected by an instrument in writing setting forth such action, executed by all the directors, which instrument shall be filed at the principal office of the Corporation or with the minutes maintained for meetings of directors.
Section 3.12 Committees. The Board of Directors, may, by resolution, designate, change or dissolve one or more committees, each committee to consist of one or more of the directors of the Corporation, which (to the extend provided in the resolution, subject to the Certificate of Incorporation and applicable law) shall have and may exercise the powers and authority of the Board Directors in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. The committees shall keep regular minutes of their proceedings and report the same to the Board of Directors when required.
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Section 3.13 Minutes of Committee Meetings. The committees shall keep regular minutes of their proceedings and report the same to the Board of Directors when required.
Section 3.14 Compensation of Directors. As set by resolution of the Board, the directors may be paid their actual expenses, if any, of attending meetings of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or stated salaries as directors. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may similarly be allowed compensation for attending committee meetings.
ARTICLE 4
NOTICES
Section 4.1 Notices. Except as otherwise provided below, notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the Corporation. Notice by mail shall be deemed to be given three (3) days after the time when the same shall be mailed, postage prepaid, to such addresses. Notice to directors may be given by electronic mail, any other form of written communication or by telephone.
Section 4.2 Waiver of Notice. Any notice required to be given under the provisions of applicable law or of the Certificate of Incorporation or of these Bylaws may be waived in writing, either before or after the event requiring such notice, provided such waiver is signed by the person or persons entitled to said notice. Attendance at a meeting by a person shall constitute a conclusive waiver of any objections made by any person with respect to the notice given to such person unless attendance shall be solely for the purpose of objection.
ARTICLE 5
OFFICERS
Section 5.1 Officers. The officers of the Corporation shall be elected by the Board of Directors and shall be a president, a vice president, a secretary and a treasurer, none of whom need to be a member of the Board. The Board of Directors may also elect a chairman of the board, one or more additional vice presidents and assistant secretaries and assistant treasurers. Two or more offices may be held by the same person.
Section 5.2 Appointment / Removal of Agents. The Board of Directors may appoint and remove such agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. The power to appoint and remove agents may be delegated by the Board.
Section 5.3 Compensation. The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors. Election or appointment of an officer or agent shall not itself create contract rights.
Section 5.4 Tenure / Removal / Vacancy. The officers of the Corporation shall hold office until their successors are chosen, or until their earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed, with or without cause, at any time by the affirmative vote of a majority of the directors then serving. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise shall be filled by the Board of Directors.
Section 5.5 Resignation. Any officer may resign at any time by giving written notice of his or her resignation to the Board, the president or the secretary. Any such resignation shall take effect at the time specified therein, or, if the time when it shall become effective is not specified therein, it shall take effect immediately upon its receipt by the Board, the president or the secretary; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 5.6 President. The president shall be the chief executive officer of the Corporation, shall preside at all meetings of the shareholders and the Board of Directors, shall be ex officio a member of the all standing committees and, subject to the limitations on authority set forth in Section 3.10 of these Bylaws, shall have general and active management of the business of the Corporation. The president may execute all bonds, mortgages and other contracts or instruments in the ordinary course of the business of the Corporation. Unless these Bylaws or the Board of Directors specifies otherwise, the president shall have authority to vote (or grant a proxy with respect to) any securities held or owned by the Corporation.
Section 5.7 Chairman of the Board. In the event the Board of Directors elects a chairman of the Board of Directors who is not also the president, he shall have all the powers of the president in the president’s absence or inability to act and such other powers as the Board of Directors shall designate.
Section 5.8 Vice Presidents. The vice presidents, in the order of their seniority of election, unless otherwise determined by the Board of Directors, shall, in the absence or disability of the president and chairman of the Board of Directors, if there be one, perform the duties and exercise the powers of the president. They shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 5.9 Secretary. The secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and record or cause to be recorded all the proceedings of such meetings in a book or books to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, required notices of all meetings of the shareholders and the Board of Directors, and shall perform such other duties as may be prescribe by the Board of Directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the Corporation and, when authorized by the Board of Directors, affix the same to any contract or instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. He shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 5.10 Assistant Secretaries. The assistant secretaries in the order of their seniority of election, unless otherwise determined by the Board of Directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the secretary. They shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 5.11 Treasurer. The treasurer shall have the custody of the corporate funds and securities, shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books belonging to the Corporation, and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the president and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as treasurer and of the financial condition of the Corporation. He shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 5.12 Surety Bond. If required by the Board of Directors, the treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.
Section 5.13 Assistant Treasurers. The assistant treasurers in the order of their seniority of election, unless otherwise determined by the Board of Directors, shall, in the absence of disability of the treasurer, perform the duties and exercise the powers of the treasurer. They shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
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ARTICLE 6
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subject to the further provisions hereof the Corporation shall indemnify any and all of its directors, officers, former directors, and former officers, to the full extent permitted under applicable law against all amounts incurred by them and each of them, including but not limited to expenses, legal fees, costs, judgments, fines and amounts paid in settlement which may be actually and reasonably incurred, rendered or levied in any threatened, pending or completed action, suit or proceeding brought against any of them for or on account of any action or omission alleged to have been committed while acting within the scope of his duties as a director or officer of the Corporation. Whenever any such director or officer shall report to the president of the Corporation or the Board of Directors that he has incurred or may incur such amounts, the Corporation shall, within a reasonable time thereafter, determine in a manner consistent with applicable law (including 18 Okla. Stat. § 1031) whether, in regard to the matter involved, such person acted or failed to act in good faith and in a manner 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. If the Corporation so determines that such person acted or failed to act in such a manner with regard to the matter involved, indemnification shall be mandatory and shall be automatically extended as specified herein; provided, however, that the Corporation shall have the right to refuse indemnification in any instance in which the person whom indemnification would otherwise have been applicable shall not offer the Corporation the opportunity, at its own expense and through counsel of its own choosing, to defend him in the action, suit or proceeding. Nothing contained herein is intended to limit any right of indemnification or other rights provided by Oklahoma Statutes, Title 18, Section 1031, or other applicable law.
ARTICLE 7
CERTIFICATES OF STOCK; DEBT INSTRUMENTS
Section 7.1 Stock Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by, the president or a vice president and the secretary or an assistant secretary, certifying the number of shares owned by him in the Corporation. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock, the designations, preferences, limitations and rights of each class or series shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock; provided, however, that except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back of a certificate a statement to the effect that the Corporation will furnish any shareholder upon request and without charge such a description or summary.
Section 7.2 Facsimile Signatures. Where a certificate, bond, debenture or other debt security instrument is (1) signed by a transfer agent or an assistant transfer agent or (2) registered by a registrar other than the Corporation or an employee of the Corporation, the signature of any president, vice president, secretary or assistant secretary may be facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or instrument shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise before such certificate or instrument have been delivered by the Corporation, such certificate or instrument may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or instrument or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation.
Section 7.3 Lost Certificates. The Board of Directors may direct a new certificate or instrument to be issued in place of any certificate or instrument theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate or instrument to be lost or destroyed. When authorizing such issue of a new certificate or instrument, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or instrument, or his legal representative, to give the Corporation such indemnity as it may direct against any claim that may be made against the Corporation with respect to the certificate or instrument alleged to have been lost or destroyed.
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Section 7.4 Transfers of Stock. Transfers of shares of stock of the Corporation shall be made only on the stock transfer books of the Corporation. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares properly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, and payment of all taxes thereon the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
Section 7.5 Record Dates. The Board of Directors may fix in advance a date, not more than sixty (60) days (nor less than ten (10) days) preceding the date of any meeting of shareholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, for the determination of the shareholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, or to receive payment of any such dividend, or to receive any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock. In addition, the Board of Directors may fix a record date for the determination of shareholders entitled to express consent to corporate action in writing without a meeting, which date shall not precede nor be more than ten (10) days after the date upon which the record date is so fixed. In such cases each such shareholder and only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting and any adjournment thereof, or to express such consent, or to receive payment of such dividend, or to receive such allotment of rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid.
Section 7.6 Registered Shareholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to vote as such owner, to transfer such shares and for all other purposes; and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Oklahoma.
ARTICLE 8
GENERAL PROVISIONS
Section 8.1 Declaration / Payment of Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation (or of any resolution of the Board of Directors establishing any series of any class of stock adopted pursuant to the provisions of the Certificate of Incorporation), if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation and applicable law.
Section 8.2 Reserve Fund. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, equalize dividends, or to repair or maintain any property of the Corporation, and for such other purpose as the directors shall determine to be in the best interests of the Corporation. The directors may modify or abolish any such reserve in the manner in which it was created.
Section 8.3 Checks. All checks, drafts, or orders or demands for or to pay money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate or in the absence of such designation by the president or the treasurer.
Section 8.4 Contracts. Except as otherwise required by law or by these Bylaws, any contract or instrument approved by the Board may be executed and delivered in the name of the Corporation and on its behalf by the president or a vice president. In addition, the Board may authorize any other officer or officers or agent or agents to execute and deliver any contract or instrument in the name of the Corporation and on its behalf, and such authority may be general or confined to specific instances as the Board may by resolution determine.
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Section 8.5 Attestation. Any vice president, the secretary, or any assistant secretary may attest the execution of any contract, instrument or document by the president or any other duly authorized officer or agent of the Corporation and may affix the corporate seal, if any, in witness thereof, but neither such attestation nor the affixing of a corporate seal shall be requisite to the validity of any such document or instrument.
Section 8.6 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 8.7 Corporate Seal. A corporate seal shall not be requisite to the validity of any contract, instrument or document executed by or on behalf of the Corporation. The corporate seal, if any, shall have inscribed thereon the name of the Corporation, and the year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 8.8 Loan to Directors or Employees. The Corporation shall not make any loan to a director, or guarantee any indebtedness of a director or otherwise use its credit to assist a director, without the express authorization by the shareholders entitled to vote thereon in each particular case. The Board of Directors may authorize the Corporation to make a loan to any employee of the Corporation (including any director who is also an employee), or to guarantee indebtedness of or otherwise use its credit to assist such employee, if the Board determines that the same may be reasonably expected to benefit the Corporation; any resolution properly adopted by the Board authorizing a loan to any employee by the Corporation (or authorizing any such guarantee or use of credit) shall conclusively evidence such a determination by the Board, whether or not expressed therein.
Section 8.9 Books and Records. Any person who is a holder of record of shares, upon written demand under oath stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose the Corporation’s relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom.
Section 8.10 Pronouns and Plurals. To the extent permitted by the context in which used, words in the singular number shall include the plural, words in the masculine gender shall include the feminine, and vice versa.
Section 8.11 Headings. Captions used herein are for convenience only and are not part of these Bylaws and shall not be deemed to limit or alter any provisions hereof and shall not be deemed relevant in construing these Bylaws.
Section 8.12 Conflict With Applicable Law or Certificate of Incorporation. These Bylaws are adopted subject to any applicable law and the Certificate of Incorporation. Whenever these by Bylaws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.
ARTICLE 9
AMENDMENTS
Subject to the Certificate of Incorporation, these Bylaws may be altered, amended or repealed at any regular or special meeting of the Board of Directors.
Adopted on July 20, 2021. Confirmed as to adoption:
By: /s/ Kenneth L. Agee
Name: Kenneth L. Agee
Title: Secretary
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EXHIBIT 3.1
SIXTH AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
THIS SIXTH AMENDED AND RESTATED SHAREHOLDERS AGREEMENT (the “Agreement”) is entered into as of the 21st day of July, 2021, by and among Emerging Fuels Technology, Inc., a corporation formed under the laws of Oklahoma (the “Corporation”), and the shareholders of the Corporation’s Common Stock and Preferred Stock (individually a “Shareholder” or collectively the “Shareholders”).
RECITALS:
WHEREAS, as of the date hereof, the Shareholders own all of the issued and outstanding Common Stock and Preferred Stock of the Corporation as set forth on Exhibit A hereto;
WHEREAS, the Shareholders believe that they will promote their mutual interests and the interests of the Corporation, and will ensure continuity and stability in the management and policies of the Corporation, if they impose certain restrictions and obligations upon themselves and upon the Corporation;
WHEREAS, on November 4, 2016, the Corporation and the then-existing shareholders of the Corporation entered into that certain Fifth Amended and Restated Shareholders Agreement (the “Fifth Amendment”);
WHEREAS, as permitted by Section 10.10 of the Fifth Amendment, Shareholders owning seventy percent (70%) of the issued and outstanding Common Stock and Preferred Stock of the Corporation wish to amend the terms of the Fifth Amendment and fully restate the mutually agreed upon terms and conditions herein; and
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and promises herein contained, the parties hereto hereby covenant and agree as follows:
SECTION 1
PREEMPTIVE RIGHTS
1.1 Preemptive Rights. Subject to the restrictions on preemptive rights contained in Section 1.2 below, prior to the consummation of any proposed issuance or sale by the Corporation of any shares of its capital stock including any treasury shares (e.g., authorized but unissued shares), such shares shall first be offered (on the same terms and conditions as so proposed to be issued or sold) to the Shareholders in proportion to their respective holdings, all as more fully set forth below:
(a) Said terms and conditions shall be communicated in writing to each Shareholder at their address appearing on the books of this Corporation, together with a statement of their rights hereunder.
(b) Each Shareholder shall have the option to acquire their proportion (i.e., a fraction, the numerator of which is the number of shares held by such Shareholder prior to the new issuance and the denominator of which is the total number of issued and outstanding shares held by all Shareholders prior to the new issuance) of the capital stock so proposed to be issued or sold, on the same terms and conditions. Such option shall be exercised by delivery of written notice of exercise to the principal office or statutory agent of this Corporation within ten (10) business days after receipt of the communication referred to in Section 1.1(a) above. An option may be exercised as to all shares subject thereto or in part.
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(c) In the event any Shareholder shall fail or decline to exercise his preemptive option as aforesaid, such Shareholder’s proportion of said capital stock may be acquired by the Shareholders who have exercised their options up to a number of shares in proportion to the number of shares subject to their options. Such option shall be exercised by delivery of written notice of exercise to the principal office or statutory agent of this Corporation within ten (10) business days after receipt of a communication from the Corporation as to the availability of such shares. The option may be exercised as to all shares subject thereto or in part.
(d) Any acquisition of capital stock pursuant to the preemptive rights conferred by this provision shall be closed on or before the date which is the later of (i) thirty (30) business days after receipt by the Corporation of the last written notice of exercise given pursuant to Section 1.1(b) or Section 1.1(c) above, or (ii) the date of the proposed issuance giving rise to such rights, as set forth in the notice given pursuant to Section 1.1(a) above. In the event the Corporation has not sold such capital stock within such time periods, the Corporation shall not thereafter issue or sell any shares of capital stock without first again offering such shares of capital stock to the Shareholders in accordance with the procedures set forth in this Section 1.1.
1.2 Restrictions on Preemptive Rights. All preemptive rights under Section 1.1 above shall be subject to the following limitations and restrictions:
(a) Such preemptive rights shall apply to the issuance of capital stock by any subsidiary or to be formed subsidiary of the Corporation unless such subsidiary or to be formed subsidiary is issuing the capital stock in connection with the Corporation entering into a joint venture arrangement or other strategic relationship whose sole purpose is to further the business of the Corporation.
(b) Such preemptive rights shall not apply to (i) the Corporation’s issuance of any Non-Voting Common Stock or issuance of any Common Stock upon the conversion of any Non-Voting Common Stock or Preferred Stock, (ii) the issuance of any of the Corporation’s capital stock, or options therefor, pursuant to an Award (as defined in the Corporation’s 2013 Equity Award Plan) granted under the Corporation’s 2013 Equity Award Plan and/or (iii) any subsequently approved equity compensation plan approved by a majority of the directors of the Corporation who are not officers or employees of the Corporation and the issuance of any of the Corporation’s capital stock, or options therefore, granted under such plan.
SECTION 2
ELECTION OF DIRECTORS
2.1 Election of Directors. Subject to Section 2.2 below, the Shareholders covenant and agree, one to the other, that they shall, at all times and from time to time, if lawfully permitted to do so, vote all shares of stock in the Corporation over which such Shareholder has voting control and shall take all other necessary or desirable actions within such Shareholder’s control (including in their respective capacity as shareholder, director, member of a board committee or officer of the Corporation or otherwise, and whether at a regular or special meeting of the Shareholders or by written consent in lieu of a meeting):
(a) so that the board of directors of the Corporation (the “Board”) shall at all times consist of not less than four (4) members;
(b) so that such total shall consist of (i) one (1) person to be designated by Kenneth L. Agee (or his heirs described in Section 2.2(b)), (ii) one (1) person to be designated by Terry Ingle (or his heirs described in Section 2.2(b)), (iii) one (1) person to be designated by Ray Witten (or his heirs described in Section 2.2(b)), and (iv) one (1) person to be designated by Black & Veatch Corporation (“B&V”); and
(c) so that upon a tie vote or deadlock of the Board (or any committee formed thereby) over any matter, the Board shall first use their best efforts to attempt to resolve the matter amongst themselves. If the Board’s efforts to resolve such matter fail, then the Board shall submit such matter to a vote of the shareholders of the Corporation.
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2.2 Resignation / Removal of Directors Upon Ceasing to Own Shares.
(a) If any of Kenneth L. Agee, Terry Ingle, Ray Witten or B&V ceases to own shares of stock in the Corporation, for any reason whatsoever except as outlined under Section 2.2(b), then such former Shareholder (or its designee) shall immediately resign from the Board. If such former Shareholder (or its designee) does not resign, the other Shareholders shall remove such former Shareholder (or its designee) from the Board. Unless otherwise agreed to in writing among the Shareholders, the bylaws of the Corporation shall govern how such vacancy is filled.
(b) If any of Kenneth L. Agee, Terry Ingle or Ray Witten ceases to own shares of stock in the Corporation under Section 4.3, then the heirs of such Shareholder (so long as such heirs (i) are permitted transferees under Section 4.3, and (ii) are either family members related by blood (not third parties) or a trust whereby such family members related by blood are either the trustee(s) or a majority of the beneficiaries thereof) shall be entitled to designate one (1) person to the Board until such time as such heirs cease to hold in the aggregate a percentage ownership of the Corporation of greater than five percent (5%). At such time, the designee of such heirs shall immediately resign from the Board, the other Shareholders shall remove such designee from the Board (if such designee does not resign) and, unless otherwise agreed to in writing among the Shareholders, the bylaws of the Corporation shall govern how such vacancy is filled.
2.3 Removal of Director. Except as provided in Section 2.2, each of Kenneth L. Agee, Terry Ingle, Ray Witten (or their respective heirs described in Section 2.2(b)) and B&V shall have the right at any time to remove (with or without cause) such Shareholder’s director and each other Shareholder shall vote all shares of stock over which such other Shareholder has voting control and shall take all other necessary or desirable actions within such other Shareholder’s control (including in its capacity as shareholder, director, member of a board committee or officer of the Corporation or otherwise, and whether at a regular or special meeting of the Shareholders or by written consent in lieu of a meeting) to remove such Shareholder’s director from the Board. Except as provided in the preceding sentence, unless Kenneth L. Agee, Terry Ingle, Ray Witten (or their respective heirs described in Section 2.2(b)) or B&V shall otherwise consent in writing, no other Shareholder shall take any action to cause the removal of such Shareholder’s director.
2.4 Designation of Director. Except as provided in Section 2.2, in the event a vacancy is created on the Board at any time and for any reason with respect to the directorship held by the designee of Kenneth L. Agee, Terry Ingle, Ray Witten (or their respective heirs described in Section 2.2(b)) or B&V (whether as a result of death, disability, retirement, resignation or removal), the applicable Shareholder shall have the right to designate a different individual to replace such director and each other Shareholder shall vote all shares of stock over which such Shareholder has voting control and shall take all other necessary or desirable actions within such Shareholder’s control (including in its capacity as shareholder, director, member of a board committee or officer of the Corporation or otherwise, and whether at a regular or special meeting of the Shareholders or by written consent in lieu of a meeting) to elect to the Board any individual designated by the applicable Shareholder as that Shareholder’s director.
2.5 Confidentiality Agreements. Each of Kenneth L. Agee, Terry Ingle, Ray Witten (or their respective heirs described in Section 2.2(b)) and B&V will cause such Shareholder’s director to execute a confidentiality agreement with the Corporation. Such confidentiality agreement will be in substantially the same form as the Corporation uses in the ordinary course of business with its officers and employees.
2.6 Applicability to Trusts. Any referenced to Kenneth L. Agee, Terry Ingle or Ray Witten in this Section 2 shall also mean to include an inter vivos trust which is controlled by the applicable Shareholder.
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SECTION 3
RESTRICTIONS ON TRANSFER
3.1 Invalidity of Transfers. Subject to Sections 3.4 and 3.5 below, no transfer of shares of the Corporation by a Shareholder shall be valid unless all of the following conditions are met:
(a) The transfer is a permitted transfer under Section 4 of this Agreement.
(b) The Shareholder-transferor, as defined in Section 3.2 below, obtains the prior written consent of the Corporation, which consent shall not be unreasonably withheld.
(c) The transferee shall have executed and delivered to the Corporation a joinder agreement, reasonably satisfactory in form and substance to the Corporation, agreeing to be bound by the terms and conditions of this Agreement.
(d) Upon request by the Corporation, the Shareholder-transferor shall furnish to the Corporation a written opinion of counsel, reasonably satisfactory in form and substance to the Corporation, to the effect that registration under applicable state and federal securities laws is not required in connection with the transfer.
Any transfer or attempted transfer of any shares of the Corporation in violation of this Agreement shall be null and void, no such transfer shall be recorded on the Corporation’s books and the purported transferee in any such transfer shall not be treated (and the purported Shareholder-transferor shall continue to be treated) as the owner of such shares of the Corporation for all purposes of this Agreement.
3.2 Definition of Transfer. “Transfer” means any sale, transfer, assignment, pledge, hypothecation, disposition, gift, exchange, sale by legal process under execution, or change in ownership, legal or beneficial, voluntary or involuntary, because of any act or occurrence; provided, however, the term “transfer” shall not include a Shareholder executing a proxy or power of attorney to either the Corporation, its board of directors, another Shareholder or an immediate family member of such Shareholder to vote such Shareholder’s shares or otherwise make decisions and act for such Shareholder as to any of such Shareholder’s rights, duties and obligations under this Agreement. With regard to any entity that is a Shareholder (other than B&V), the term “transfer” shall also mean any change in the majority ownership of such entity or its parent company(ies) (one or more parent companies in an upward series) and the transfer restrictions contained in Sections 3-7 of this Agreement shall apply to such change in ownership. “Shareholder-transferor” means the Shareholder whose shares have been or are about to be transferred.
3.3 Definition of Bona Fide Offer. “Bona Fide Offer” means a legally enforceable offer in writing, made and signed by an offeror or offerors who is, or who are, not an affiliate of the Shareholder-transferor and who is a person or persons or entity or entities financially capable of carrying out the terms of such Bona Fide Offer. As used in the prior sentence, the term “affiliate,” as it relates to any person or entity, shall mean any parent, spouse, brother, or sister, or natural or adopted lineal descendant or spouse of such descendant of such person, and any entity in which the Shareholder-transferor or its parent company(ies) (one or more parent companies in an upward series) will at the time in question directly or indirectly own fifty percent (50%) or more interest in such entity.
3.4 Exclusion for Exchange of Common Stock for Non-Voting Common Stock. Notwithstanding anything to the contrary contained in this Agreement, Sections 3-7 hereof shall not apply to:
(a) any Shareholder exchanging such Shareholder’s Common Stock for Non-Voting Common Stock so long as (i) such exchange is approved by the Board in its reasonable discretion, (ii) such exchange is made pursuant to a mutually-acceptable, written share exchange agreement, and (iii) such exchange is made in accordance with all applicable laws, rules and regulations; or
(b) any Shareholder selling or otherwise transferring such exchanged Non-Voting Common Stock.
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3.5 Exclusion for Conversion of Common Stock to Non-Voting Common Stock. Notwithstanding anything to the contrary contained in this Agreement, Sections 3-7 hereof shall not apply to:
(a) any Shareholder converting such Shareholder’s Common Stock to Non-Voting Common Stock so long as (i) a conversion mechanism is expressly set forth in the Corporation’s certificate of incorporation, (ii) such conversion is made in accordance with the Corporation’s certificate of incorporation and (iii) such conversion is made in accordance with all applicable laws, rules and regulations; or
(b) any Shareholder selling or otherwise transferring such converted Non-Voting Common Stock.
SECTION 4
PERMITTED TRANSFERS
4.1 Consent. Any transfer of shares of the Corporation shall be a permitted transfer if (i) Shareholders owning at least eighty percent (80%) of the issued and outstanding Common Stock and Preferred Stock consent in writing to the specific transfer and (ii) Shareholders owning at least one hundred percent (100%) of the issued and outstanding Preferred Stock consent in writing to the specific transfer.
4.2 Transfer After Tender. A transfer of shares of the Corporation shall be a permitted transfer if all of the following conditions are met:
(a) The shares have been tendered to the Corporation and the other Shareholders as provided in this Agreement.
(b) If the transfer is to be by sale, the proposed price and terms of sale must be a Bona Fide Offer.
(c) The tender has not been accepted within the time limits set forth in this Agreement.
(d) The transfer is made within 180 days after the notice of tender is effective, is made to the transferee named in the tender notice, and is upon the price and terms set forth in the tender notice.
(e) The Shareholder-transferor(s) and the offeror(s) have complied with the tag along rights of the other Shareholders as provided in Section 7 of this Agreement, if applicable.
4.3 Transfers Upon Death of Shareholder. Any transfer of shares of the Corporation upon the death of a Shareholder by testamentary instrument or applicable intestacy laws shall be a permitted transfer. The transferee of the shares shall provide, or cause to be provided, to the Corporation, if requested by the Corporation, sufficient evidence of the legal right and authority of the transferee to have the shares so transferred.
4.4 Transfers to Inter Vivos Trusts. Any transfer of shares of the Corporation by a Shareholder to an inter vivos trust shall be a permitted transfer. The transferee of the shares shall provide, or cause to be provided, to the Corporation, if requested by the Corporation, sufficient evidence of the legal right and authority of the transferee to have the shares so transferred.
SECTION 5
TENDER OF SHARES
5.1 Notice of Tender. If a Shareholder desires to transfer shares of the Corporation and the transfer is not a permitted transfer unless tender is made, the shares to be transferred shall be tendered to the Corporation and the other Shareholders. Tender shall be made by giving notice of tender to the Corporation and to the other Shareholders. The notice shall state the number of shares to be transferred, the name and address of the person giving the notice and of the transferee, and the nature of the transfer. If the transfer is to be by sale, the proposed price and terms of sale must be a Bona Fide Offer and the notice of tender shall set forth the proposed price and terms of sale and shall include a copy of such Bona Fide Offer.
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5.2 Person Obligated to Give Notice. The notice shall be given by the Shareholder-transferor if the transfer is voluntary. If the transfer is involuntary, or by operation of law, the notice shall be given by the successor in interest of the Shareholder-transferor.
5.3 Acceptance by Corporation. Within twenty (20) days following the giving of a notice of tender, the Corporation may accept the tender and purchase all or any part of the shares tendered.
5.4 Acceptance by Shareholders. If the Corporation fails to exercise its option to purchase all or any part of the shares tendered, the other Shareholders may accept the tender and purchase the shares not purchased by the Corporation. The other Shareholders may accept the tender at any time within twenty (20) days following the expiration of the period for the Corporation’s acceptance of the tender.
5.5 Additional Acceptances by Shareholders. The other Shareholders shall have the right to accept the tender and purchase the tendered shares in the same ratio as the number of shares of the Corporation owned by each of them bears to the number of shares of the Corporation owned by all of them. If any of the other Shareholders does not elect to purchase the shares allocated to such Shareholder, any of the other Shareholders shall, within ten (10) days following the expiration of the period for the other Shareholders’ acceptance of the tender, have the right to accept the tender and purchase all or any part of the remaining shares tendered. If more than one of the other Shareholders elect to purchase the remaining shares, such Shareholders shall have the right to purchase the shares in the same ratio as the number of shares of the Corporation owned by each of them bears to the number of shares of the Corporation owned by all of them, or on any other basis that they may agree upon.
5.6 Purchase of All Shares Required. Notwithstanding any other provision of this Agreement, no acceptance of tender shall be effective unless the tender is accepted by the Corporation or by one or more of the other Shareholders as to all shares tendered. A Shareholder-transferor shall not be required to sell tendered shares to the Corporation or the other Shareholders unless all of the tendered shares are purchased.
5.7 Notice of Acceptance. A tender shall be accepted by giving notice of acceptance to the party giving notice of the tender. If acceptance is by the Corporation, notice of acceptance shall be given concurrently to the other Shareholders. If the acceptance is by one or more of the Shareholders other than the Shareholder-transferor, notice of the acceptance shall be given concurrently to the Corporation and to all other Shareholders.
5.8 Nonacceptance of Tender. If a tender is not accepted, the shares subject to the tender may be transferred as permitted in Section 4.2 of this Agreement. If such transfer is not consummated within the time period in Section 4.2(d), the right provided under this Section 5 shall be deemed to be revived and the shares subject to the tender shall not be transferred until this Section 5 is complied with.
SECTION 6
PURCHASE PRICE AND TERMS OF PAYMENT
6.1 Proposed Sale of Shares. If shares are to be purchased by the Corporation or other Shareholders pursuant to a tender because the Shareholder-transferor intends to sell the shares by voluntary sale to a third party, the purchase price shall be the price for which the Shareholder-transferor intends to sell the shares plus ten percent (10%). Unless the Shareholder-transferor agrees otherwise, the Corporation or other Shareholders, as the case may be, shall purchase the shares upon the terms the Shareholder-transferor intends to sell the shares.
SECTION 7
TAG ALONG RIGHTS
7.1 Tag Along Right of Sale When Majority Interest Is Being Purchased. If any Shareholder-transferor(s) serves a tender notice in accordance with Section 5 of this Agreement in connection with a Bona Fide Offer which provides for a sale, the completion of which would result in the ownership by the offeror(s) of a majority of the shares of the Corporation, and should any of the other Shareholders decide they wish to sell their shares to the offeror(s) on the same terms and conditions as contained in the Bona Fide Offer, then the Shareholder-transferor(s) serving the tender notice shall not be entitled to sell, transfer or otherwise dispose of their shares unless the offeror(s) purchase at the same time and on the same terms and conditions all of the shares of the other Shareholders who so desire to sell their shares.
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7.2 Tag Along Acceptance / Rejection. Any Shareholder having the right to have his shares purchased pursuant to Sections 7.1 shall accept or reject this right by delivering to the Shareholder-transferor(s) and the offeror(s) written notice of his intentions within the time period prescribed under Section 5.4. Failure to deliver the required notice of acceptance or rejection within the time period specified in the preceding sentence shall be deemed to be a rejection of the purchase offer. If any Shareholder accepts the right to have his shares purchased pursuant to Section 7.1, then:
(a) Such Shareholder shall negotiate in good faith with the offeror(s) to consummate the transaction contemplated by the applicable tender notice and the Shareholder’s acceptance of his right to have his shares purchased pursuant to Section 7.1;
(b) Any representations and warranties made by such Shareholder (and any liabilities resulting therefrom) pertaining to the consummation of the aforementioned transaction will be several; and
(c) The consummation of the aforementioned transaction will occur on or before the date which is the later of (i) the closing date specified in the tender notice given under Section 5 (unless waived by the parties thereto) or (ii) 180 days after the tender notice is given under Section 5.
SECTION 8
COVENANTS AND AGREEMENTS
8.1 Covenants and Agreement of Shareholders with Board Seats. Kenneth L. Agee, Terry Ingle, Ray Witten, and B&V each individually covenants and agrees to each of the other Shareholders and the Corporation that the person that each of them designates to be a member of the Board under Section 2 will not be an employee, officer, director or agent of any Competitor.
8.2 Covenants and Agreements of the Corporation. The Corporation covenants and agrees to each of the Shareholders as follows:
(a) In addition to, and without limiting any rights that a Shareholder may have with respect to inspection of the books and records of the Corporation under applicable law, the Corporation shall furnish to each Shareholder (or such Shareholder’s designated member of the Board, if any), the following information:
(i) Within one hundred twenty (120) days after the end of each fiscal year, the balance sheet of the Corporation as at the end of each such fiscal year and the statements of income, cash flows and changes in stockholders’ equity for such year. Such financial statements shall fairly present in all material respects the financial condition of the Corporation as of the dates thereof and the results of its operations and changes in its cash flows and stockholders’ equity for the periods covered thereby; and
(ii) Within forty-five (45) days after the end of each fiscal quarter, the balance sheet of the Corporation at the end of such quarter and the statements of income, cash flows and changes in stockholders’ equity for such quarter. Such financial statements shall fairly present in all material respects the financial condition of the Corporation as of the dates thereof and the results of its operations and changes in its cash flows and stockholders’ equity for the periods covered thereby;
(b) The Corporation shall, and shall cause its officers and directors to afford such Shareholder the opportunity to consult with its officers and directors from time to time regarding the Corporation’s affairs, finances and accounts as each such Shareholder may reasonably request upon reasonable notice. The right set forth in this Section 8.2(b) shall not and are not intended to limit any rights which the Shareholder may have with respect to the books and records of the Corporation, or to inspect its properties or discuss its affairs, finances and accounts under the laws of the jurisdiction in which the Corporation is incorporated.
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(c) Upon thirty (30) days’ prior written notice to the Corporation, any Shareholder and its representatives shall have the right, at its own expense, to access the books and records, directors, officers and employees of the Corporation as may be reasonably necessary to (i) verify the accuracy of the books and records of the Corporation or (ii) audit the financial statements being provided to the Shareholders under Section 8.2(a). Such access shall be conducted during ordinary business hours and in a manner that does not unreasonably interfere with the Corporation’s operations, and shall not be more frequent than once per fiscal year or in respect of any fiscal year ending not more than thirty (30) months prior to the date of such notice. The rights set forth in this Section 8.2(c) shall not and are not intended to limit any rights which the Shareholder may have with respect to the books and records of the Corporation, or to inspect its properties or discuss its affairs, finances and accounts under the laws of the jurisdiction in which the Corporation is incorporated.
8.3 Covenants and Agreements of B&V. B&V covenants and agrees to each of the Shareholders and the Corporation as follows:
(a) B&V does not currently own an equity interest in any Competitor of the Corporation; and
(b) B&V will provide prompt written notice to the Corporation upon B&V acquiring an equity interest in any Competitor of the Corporation.
(c) For purposes of this Section 8.3, Competitor does not include any person, sole proprietorship, partnership, joint venture, limited partnership, limited liability partnership, limited liability company, corporation or other entity engaged in the business of gas-to-liquids processes except such processes using Fischer–Tropsch chemistry.
SECTION 9
TERMINATION
9.1 Termination of Agreement. This Agreement shall automatically terminate upon the earlier to occur of the following:
(a) The written consent of (i) Shareholders owning at least eighty percent (80%) of the issued and outstanding Common Stock and Preferred Stock to terminate this Agreement and (ii) Shareholders owning at least one hundred percent (100%) of the issued and outstanding Preferred Stock to terminate this Agreement;
(b) The Corporation’s registration of its common stock under applicable state and federal securities laws for the purpose of an initial public offering;
(c) The Corporation’s merger or reverse merger with a third-party entity and such surviving entity’s common stock is publicly traded on a stock exchange; or
(d) The dissolution, liquidation, or winding up of the Corporation.
Upon the termination of this Agreement, neither the Corporation nor the Shareholders shall have any further rights, duties or obligations under this Agreement and the restrictive legend placed on all stock certificates of the Corporation under Section 10.1 of this Agreement shall be removed.
SECTION 10
MISCELLANEOUS PROVISIONS
10.1 Restrictive Legend. The following legend shall be endorsed upon all stock certificates of the Corporation issued to and in the name of the Shareholders:
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“The shares evidenced by this certificate are subject to and transferable only upon compliance with the terms of an agreement among the shareholders of this Corporation and the Corporation restricting transfer of shares of the Corporation. Any transfer in violation of that agreement is invalid. The agreement is binding on anyone who acquires shares. A copy of the agreement is available for inspection at the office of the Corporation.”
10.2 Specific Performance. The parties to this Agreement declare that it is impossible to measure in money the damages that will accrue if any party or the successors or assigns of any party should fail to perform any of the obligations contained in this Agreement. Therefore, the terms and provisions of this Agreement may be specifically enforced in equity, and all parties waive the claim or defense that the remedy at law is adequate for a breach of any of the terms and provisions of this Agreement.
10.3 Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors, and assigns of the parties. The provisions of this Agreement shall apply to all shares of the Corporation now held by the Shareholders or hereafter acquired by them or any of them. All of the provisions of this Agreement shall be binding upon, and inure to the benefit of, any third party who acquires shares in the Corporation from a Shareholder and any third party who acquires or has acquired prior to the date of this Agreement newly issued shares in the Corporation from the Corporation, and the terms “Shareholder,” “Shareholders,” “party,” or “parties” as used in this Agreement shall be deemed to include any such third party. Once a Shareholder ceases to own stock in the Corporation in compliance with the terms and conditions of this Agreement, such Shareholder shall no longer be a party to this Agreement. This paragraph shall not be construed as a modification of any preemptive rights under Section 1 or any restriction on transfer under Section 3, 4, 5, 6 or 7.
10.4 Notice. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be mailed by certified mail, return receipt requested, postage prepaid, addressed to the parties at the addresses shown on the records of the Corporation. All notices and other communications shall be deemed to be given at the expiration of three (3) days after the date of mailing. The address of a party to which notices or other communications shall be mailed may be changed from time to time by giving written notice to the other parties.
10.5 Litigation Expense. In the event of a default under this Agreement, the defaulting party shall reimburse the non-defaulting party or parties for all costs and expenses reasonably incurred by the non-defaulting party or parties in connection with the default, including without limitation attorney’s fees. Additionally, in the event a suit or action is filed to enforce this Agreement or with respect to this Agreement, the prevailing party or parties shall be reimbursed by the other party for all costs and expenses incurred in connection with the suit or action, including without limitation reasonable attorney’s fees at the trial level and on appeal.
10.6 Waiver. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
10.7 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Oklahoma, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
10.8 Jurisdiction; Venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the court of the Northern District of Oklahoma).
10.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter, and it supersedes the Fourth Amendment, and all prior or contemporaneous agreements, representations, and understandings of the parties.
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10.10 Amendment. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by the Corporation and Shareholders owning at least seventy percent (70%) of the issued and outstanding Common Stock and Preferred Stock of the Corporation; provided, however, any supplement, modification, or amendment to Section 2 hereof, which adversely affects the rights of either Ken Agee, Terry Ingle, Ray Witten, or B&V to designate one (1) person to the Corporation’s board of directors, shall not be binding unless executed in writing by such adversely affected Shareholder. Any supplement, modification, or amendment of this Agreement which meets the requirements of the immediately preceding sentence shall be binding upon all Shareholders.
10.11 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their heirs and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
10.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
10.13 Exclusion of Non-Voting Common Stock. Notwithstanding anything to the contrary contained in this Agreement, this Agreement does not apply to the Corporation’s Non-Voting Common Stock or the holders thereof. As such, the holders of the Corporation’s Non-Voting Common Stock shall have no rights, duties or obligations whatsoever under this Agreement. As used in this Agreement, any reference to “capital stock,” “treasury shares,” “shares” or “stock” (i) only refers to and includes the Corporation’s Common Stock and Preferred Stock and (ii) does not refer to or include the Corporation’s Non-Voting Common Stock. Any calculation of ownership or voting percentages herein shall exclude the Corporation’s Non-Voting Common Stock and the holders thereof from such calculation—both as to the numerator and denominator of any such percentage calculation. Further, upon a Shareholder’s exchange or conversion of Common Stock for or to Non-Voting Common Stock in accordance with Sections 3.4 and 3.5, as applicable, such exchanged or converted Non-Voting Common Stock will not be subject to this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date first written above.
| Kenneth L. Agee and Cindy Agee, Trustees of The Kenneth L. Agee Trust, dated May 18, 2007, and any amendments thereto | ||||
| By: | /s/ Kenneth L. Agee | By: | /s/ Kym B. Arcuri | |
| Name: | Kenneth L. Agee | Name: | Kym B. Arcuri | |
| Title: | Trustee | |||
| By: | /s/ Rafael L. Espinoza | By: | /s/ Terry Ingle | |
| Name: | Rafael L. Espinoza | Name: | Terry Ingle |
Stephen A. Campbell and Sandra K. Campbell, Trustees of the Stephen A. Campbell and Sandra K. Campbell Living Trust dated July 23, 2019, and any amendments thereto |
||||
| By: | /s/ Stephen A. Campbell | By: | /s/ Ray Witten | |
| Name: | Stephen A. Campbell | Name: | Ray Witten | |
| Title: | Trustee | |||
| By: | /s/ Mark A. Agee | By: | /s/ Edwin L. Holcomb Jr. | |
| Name: | Mark A. Agee | Name: | Edwin L. Holcomb Jr. |
Black & Veatch Corporation |
Emerging Fuels Technology, Inc. | |||
| By: | By: | /s/ Kenneth L. Agee | ||
| Name: | Name: | Kenneth L. Agee | ||
| Title: | Title: | President | ||
[Signature Page to Sixth Amended and Restated Shareholders Agreement]
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EXHIBIT A
to
Sixth Amended and Restated
Shareholders Agreement
|
Shareholder |
Type of Stock |
Number of Shares |
Percentage of Shares |
|
Kenneth L. Agee and Cindy Agee, Trustees of The Kenneth L. Agee Trust, dated May 18, 2007, and any amendments thereto |
Common Stock | 12,000,000.0 | 38.56% |
| Rafael Espinoza | Common Stock | 5,930,000.0 | 19.06% |
| Kym B. Arcuri | Common Stock | 5,370,000.0 | 17.26% |
| Black & Veatch Corporation | Series A Convertible Participating Preferred Stock | 3,766,588.2 | 12.10% |
| Terry Ingle | Common Stock | 1,726,470.7 | 5.55% |
| Ray Witten | Common Stock | 1,576,470.7 | 5.07% |
| Mark A. Agee | Common Stock | 350,000.0 | 1.12% |
| Edwin L. Holcomb Jr. | Common Stock | 350,000.0 | 1.12% |
|
Stephen A. Campbell and Sandra K. Campbell, Trustees of the Stephen A. Campbell and Sandra K. Campbell Living Trust dated July 23, 2019, and any amendments thereto |
Common Stock | 50,000.0 | 0.16% |
| Total: | 31,119,529.6 | 100.00% |
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EXHIBIT 3.2
AGREEMENT
This Agreement (the “Agreement”) is made on this 11th day of May, 2021, between Emerging Fuels Technology, Inc., an Oklahoma corporation (“EFT”), and Black & Veatch Corporation, a Delaware corporation (“B&V”).
Background
On December 2, 2015, EFT and B&V entered into that certain Stock Purchase Agreement (the “SPA”) under which B&V purchased preferred stock in EFT subject to certain terms and conditions. EFT and B&V now wish to enter into this Agreement to (i) amend certain terms and conditions of the SPA and (ii) set forth certain other commitments between the parties.
Agreement
Accordingly, EFT and B&V agree as follows:
Amendment of SPA
1. The SPA is hereby amended as follows:
(a) In the first line of Section 5.2 of the SPA, the phrase “fifth anniversary” is hereby amended to read as “seventh anniversary”;
(b) In the third line of the example in Section 5.2(a) of the SPA, the phrase “5 years” is hereby amended to read as “7 years”;
(c) In Section 5.2(e)(v) of the SPA, the phrase “10 years” is hereby amended to read as “12 years”; and
(d) A new Section 5.2(f) is hereby added to the SPA which will read as follows:
“(f) Early Exercise. If EFT does not complete and close its new (2021/2022) funding efforts and receive at least $15,000,000 of additional capital on or before June 30, 2022, B&V may exercise the Put Option any time on or after the fifth anniversary of the date of the issuance of the Shares.”
Such amended language shall be construed in connection with and as part of the SPA.
Dividend Payments
2. Each June 30 and December 31, EFT will pay to B&V a dividend of 30% of the unencumbered royalties (prepaid or running) from EFT’s licenses during the preceding 6-month period, including previously received royalties that became unencumbered during such period, subject to the following:
(a) Any and all dividend payments must be made in accordance with all laws, rules and regulations applicable thereto, EFT’s Amended and Restated Certificate of Incorporation (the “COI”), and EFT’s Second Amended and Restated Bylaws (the “Bylaws”). EFT shall not be liable under this Agreement for the non-payment of any dividend payment hereunder if the payment thereof would be in violation of any law, rule or regulation applicable thereto, EFT’s COI, or EFT’s Bylaws;
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(b) Any and all catalyst markup fees, laboratory fees, technical service fees, contract / signing fees or any other fees which are not royalties (prepaid or running) are hereby excluded from the above-referenced royalty calculation. In addition, the prepaid license fees that EFT received from Nordic Blue Crude AS in March 2021 are hereby excluded from the above-referenced royalty calculation;
(c) Any and all dividend payments from EFT to B&V hereunder will immediately cease upon the earlier to occur of the following: (i) B&V’s receipt of cumulative dividend payments from EFT totaling $7,964.77 per share (as adjusted for any stock combinations or splits with respect to such shares) (or a total cumulative amount of $3,000,000), (ii) the termination of B&V’s Put Option as to all of its shares under Section 5.2(e) of the SPA or (iii) all of B&V’s Series A Convertible Participating Preferred Stock converting to Common Stock under EFT’s COI;
(d) For purposes of simplifying both parties’ administration of the mandatory conversion procedures of B&V’s Series A Convertible Participating Preferred Stock to Common Stock under EFT’s COI, any and all such dividend payments will be paid semi-annually to B&V hereunder and will not be due and payable until 30 days after each June 30 and December 31 of the 6-month period in which such dividend payments accrued;
(e) For purposes of this Agreement, the term “unencumbered” means, (i) not being subject to any liquidated damages and (ii) not being refundable upon the occurrence of certain conditions; and
(f) Any royalties and prepaid licensed fees received by EFT prior to January 1, 2021 are hereby excluded from the above-referenced royalty calculation.
EPC Contractor for Micro-GTL
3. For a period of 5 years after the effective date of this Agreement, for any EFT-controlled Micro-GTL (as defined below) project, EFT will use B&V as its EPC contractor for such Micro-GTL project, subject to the following:
(a) B&V’s fees for the project must not be materially higher than the fees of other reputable EPC contractors for the same scope of work. If B&V’s fees are not competitive, EFT may issue an RFP to seek industry competitive offers;
(b) For purposes of this Agreement, “Micro-GTL” means a plant utilizing EFT’s technology which has a nominal design capacity of less than 75 BPD and which is designed and operated to convert Authorized Feedstock (as defined below) into Fuels (as defined below). For the avoidance of doubt, Micro-GTL does not include EFT’s flarebuster systems;
(c) For purposes of this Agreement, “Authorized Feedstock” means Biogas (as defined below) and natural gas blended up to 30% of the total BTU content of the feedstock;
(d) For purposes of this Agreement, “Biogas” means the mixture of primarily methane and carbon dioxide generated from landfills, municipal wastewater treatment facility digesters, agricultural digesters, separated municipal solid waste digesters, and the cellulosic components of biomass processed in other waste digesters;
(e) For purposes of this Agreement, “Fuels” means hydrocarbon containing materials useful as fuels or blending components therefor produced in a Micro-GTL plant or derived from such hydrocarbon containing materials by further treating or processing thereof. Fuels include diesel, jet fuel, synthetic paraffinic kerosene, and naphtha. Fuels shall not include hydrocarbon containing materials used as (i) lubricants, lubricating oil base stocks or blending components therefor; or (ii) chemicals feedstocks and products, except “Fuels” shall include naphtha where used as a fuel or where used as feed for producing C2-C4 olefins. Fuels shall also include C19+ (i.e., wax) hydrocarbons used as a feedstock for cracking to primarily C2-C4 olefins or which is subsequently hydroprocessed to produce Fuels or other blending components for Fuels; and
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(f) For the purposes of this Agreement, “EFT-controlled” means EFT will develop, own, have the right to choose the EPC contractor, or other similar measures of control.
Miscellaneous
4. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof.
5. This Agreement may not be amended except by a written instrument referencing this Agreement that is signed by both EFT and B&V.
6. The Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
7. No delay or omission to exercise any right, power or remedy accruing to any party to this Agreement upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy of such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing.
8. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such court will replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Agreement shall be enforceable in accordance with its terms.
9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Oklahoma, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
10. With respect to any disputes arising out of or related to this Agreement, EFT and B&V consent to the exclusive jurisdiction of, and venue in, the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the courts of the Northern District of Oklahoma).
11. In the event that any suit or action is instituted to enforce any provisions in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
12. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
13. Each party represents this Agreement has been duly and validly approved by all necessary corporate action, and this Agreement, when executed will constitute the legal, valid, binding, and enforceable obligation and agreement of such party.
[Signature page follows]
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The parties are signing this Agreement as of the date stated in the introductory clause.
“EFT”
Emerging Fuels Technology, Inc.,
an Oklahoma corporation
/s/ Kenneth L. Agee
Kenneth L. Agee, President
“B&V”
Black & Veatch Corporation,
a Delaware corporation
By: /s/ David E. Kerns
Name: David E. Kerns
Title: EVP
[Signature Page to Agreement]
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is made on this 2nd day of December, 2015, between Emerging Fuels Technology, Inc., an Oklahoma corporation (the “Company”), and Black & Veatch Corporation, a Delaware corporation (the “Investor”).
ARTICLE 1
ISSUANCE AND SALE OF COMMON STOCK
1.1 Issuance. The Company will, prior to the Closing (as defined below), authorize the sale and issuance of 376.65882 shares of the Company’s Series A Convertible Participating Preferred Stock, par value $0.01 per share (the “Series A Stock”), which shares will represent, after such sale and issuance, 10.65% of the then issued and outstanding shares of the Company’s Stock, as defined below, on a fully-diluted basis.
1.2 Sale of Preferred Stock. Subject to the terms and conditions of this Agreement, the Investor agrees to purchase, and the Company agrees to sell and issue to the Investor, 376.65882 shares of Series A Stock at a cash purchase price of $7,964.77 per share for an aggregate cash purchase price of $3,000,000. The shares of Series A Stock sold and issued to the Investor pursuant to this Agreement shall be referred to herein as the “Shares.”
1.3 Defined Terms Used in this Agreement. In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below:
“Affiliate” means, with respect to any specified person, any other person who, directly or indirectly, controls, is controlled by, or is under common control with such person, including, without limitation, any general partner, managing member, officer or director of such person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such person.
“Amended and Restated Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of the Company in substantially the form of Exhibit J.
“Ancillary Agreements” means the Collaboration Agreement, Common Stock Warrant, Confidentiality Agreement, Shareholders Agreement, and the Registration Rights Agreement.
“Closing” has the meaning set forth in Section 2.1.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collaboration Agreement” means the First Amended and Restated Collaboration Agreement in substantially the form of Exhibit A.
“Common Stock” means the Company’s common stock, par value $0.01 per share.
“Common Stock Warrant” means the Common Stock Warrant in substantially the form of Exhibit B.
“Confidentiality Agreement” means the Confidentiality Agreement in substantially the form of Exhibit C.
“Financial Statements” has the meaning set forth in Section 3.8.
“Intellectual Property” has the meaning set forth in Section 3.12(a).
“knowledge” means the actual knowledge after reasonable investigation of the officers and directors of the Company.
“Material Adverse Effect” means a material adverse effect on the business, assets (including intangible assets), liabilities, financial condition, property, prospects or results of operations of the Company in excess of $50,000.
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“Material Contract” has the meaning set forth in Section 3.10.
“Preferred Stock” means the Company’s preferred stock, par value $0.01 per share.
“Put Option” has the meaning set forth in Section 5.2.
“Put Option Notice” has the meaning set forth in Section 5.2(b).
“Registration Rights Agreement” means the Registration Rights Agreement in substantially the form of Exhibit K.
“Repurchase Price” has the meaning set forth in Section 5.2(c).
“Schedule of Exceptions” means the Schedule of Exceptions, attached hereto as Exhibit E.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shareholders Agreement” means the Fourth Amended and Restated Shareholders Agreement, between the Company and the shareholders thereof, in substantially the form of Exhibit D.
“Stock” means both Common Stock and Preferred Stock.
“Warrant Shares” means the shares of Common Stock that may be purchased by the Investor pursuant to the Common Stock Warrant.
ARTICLE 2
CLOSING; DELIVERIES
2.1 Closing. The closing of the purchase, sale and issuance of the Shares and the other transactions contemplated by this Agreement (the “Closing”) shall take place simultaneously with the execution and delivery of this Agreement on the date hereof at the offices of the Company located at 11367 East 61st Street, Broken Arrow, Oklahoma 74012 or by means of a simultaneous virtual closing between the Company and the Investor.
2.2 Deliveries of the Company. At the Closing, the Company will execute and/or deliver, as applicable, to the Investor:
(a) a certificate or certificates, registered in the Investor’s name, representing the Shares being purchased by the Investor;
(b) the Ancillary Agreements executed by the Company;
(c) a certificate of the Company executed by the Company’s secretary, in substantially the form of Exhibit F;
(d) a legal opinion from the Company’s counsel, dated as of the Closing, in substantially the form of Exhibit G;
(e) evidence of the filing of the Amended and Restated Certificate of Incorporation; and
(f) resolutions adopted by the board of directors of the Company (i) adding 1 newly created directorship of the Company and (ii) appointing the Investor’s designee to fill such newly created directorship.
2.3 Deliveries of the Investor. At the Closing, the Investor will execute and/or deliver, as applicable, to the Company:
(a) the purchase price for the Shares being purchased by the Investor, by (i) cashier’s check payable to the Company, or (ii) wire transfer in accordance with the Company’s instructions; and
(b) the Ancillary Agreements executed by the Investor or Investor’s designee, as applicable.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Schedule of Exceptions, the Company represents and warrants to the Investor as follows:
3.1 Organization, Good Standing, and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Oklahoma. The Company has the requisite corporate power and authority to own and operate its properties and assets, to carry on its business as presently conducted, to execute and deliver this Agreement and the Ancillary Agreements, to issue and sell the Shares and to perform its obligations pursuant to this Agreement and the Ancillary Agreements. The Company is presently qualified to do business as a foreign corporation in each jurisdiction where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect.
3.2 Subsidiaries. The Company does not own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity. The Company is not a participant in any joint venture, partnership or similar arrangement.
3.3 Capitalization. The authorized Stock of the Company consists of 10,000 shares of Stock, of which 3,158.82354 shares of Common Stock are issued and outstanding and owned by the shareholders in the amounts specified on Exhibit H. To the best of the Company’s knowledge, each shareholder (a) is the sole record owner such shares of Stock, (b) has the sole legal and beneficial ownership of, and good and marketable title to, such shares of Stock, free and clear of any defects in title or liens, claims or encumbrances of any kind or nature, and (c) has not sold, assigned, transferred, conveyed, delivered or otherwise disposed of or entered into any contract, agreement, arrangement or commitment pursuant to which such shareholder has or is obligated to sell, assign, transfer, convey, deliver or otherwise dispose of, all or any right, title or interest in or to any of such shares of Stock. Such shares of Stock are duly authorized, validly issued and outstanding, fully paid and non-assessable, and were issued free of preemptive rights or rights of first refusal in accordance with applicable corporate and securities laws. There are no options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, convertible securities or other rights, agreements, arrangements or commitments of any character relating to the Stock or obligating the Company to issue, sell or otherwise cause to become outstanding any Stock or any securities convertible into or exchangeable for shares of Stock. Except as set forth in the Shareholders Agreement, there are no voting trusts, agreements, proxies or other understandings in effect with respect to the voting or transfer of any of the Stock. There is no outstanding or authorized equity appreciation, phantom participation, equity incentive or similar rights or plans with respect to the Company.
3.4 Authorization. All corporate action on the part of the Company and its directors, officers and shareholders necessary for the authorization, execution and delivery of this Agreement and the Ancillary Agreements by the Company, the authorization, sale, issuance and delivery of the Shares and the Warrant Shares, and the performance of all of the Company’s obligations hereunder and thereunder has been taken. This Agreement and the Ancillary Agreements, when executed and delivered by the Company, shall constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, except (i) as limited by laws of general application relating to bankruptcy, insolvency and the relief of debtors and (ii) as limited by rules of law governing specific performance, injunctive relief or other equitable remedies and by general principles of equity.
3.5 Governmental Consent. Assuming the accuracy of the representations made by the Investor in Article 4, no consent, approval or authorization of or designation, declaration of filing with any governmental authority on the part of the Company is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Shares, or the consummation of any other transactions contemplated by this Agreement, except for the filing of (i) a Form D (Notice of Exempt Offering of Securities) with the United States Securities and Exchange Commission and (ii) an Oklahoma Accredited Investor Exemption with the Oklahoma Department of Securities, which will be timely filed within the applicable periods therefor.
3.6 Compliance with Other Instruments. The Company is not in violation or default of (i) any provisions of its certificate of incorporation or bylaws, each as amended to date, (ii) any instrument, judgment, order, writ, decree or contract to which it is a party or by which it is bound or (iii) any provision of federal or state statute, rule or regulation applicable to the Company. The execution, delivery and performance by the Company of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby will not result in any such violation or default or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i) a default under any such provision, instrument, judgment, order, writ, decree or contract or (ii) an event which results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, forfeiture, or nonrenewal of any material permit, license authorization or approval, applicable to the Company, its business or operations or any of its assets or properties.
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3.7 Valid Issuance of Shares. Upon consummation of the transactions contemplated by this Agreement, the Shares will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Shareholders Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by the Investors. When issued by the Company, the Warrant Shares and any Common Stock issued upon the conversion of the Shares will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Shareholders Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by the Investors. Assuming the accuracy of the representations of the Investor in Article 4 of this Agreement and subject to the filings described in Section 3.5, the Shares will be issued in compliance with all applicable federal and state securities laws.
3.8 Financial Statements. The Company has delivered to the Investor its unaudited balance sheet and income statement as of and for the period ended December 31, 2014 and its unaudited balance sheet and income statement as of and for the period ended August 31, 2015 (collectively, the “Financial Statements”). The Financial Statements are attached hereto as Exhibit I. The Financial Statements: (i) have been prepared in accordance with the books and records of the Company, (ii) are true, accurate, and complete in all material respects and present fairly and accurately the financial position of the Company as of the dates specified and the results of the Company’s operations for the periods specified, (iii) reflect all assets and all liabilities of the Company, and (iv) have not been rendered untrue, incomplete, misleading, or unfair as representations of the financial position, results of operations or changes in the financial position of the Company by events subsequent to the respective dates thereof; provided, however, the Financial Statements have not been prepared in accordance with generally accepted accounting principles.
3.9 Absence of Changes. Since August 31, 2015, there has not been: (a) any material change in the assets, liabilities, financial condition or operating results of the Company; (b) any damage, destruction or loss, whether or not covered by insurance; (c) any waiver by the Company of a material right or of a material debt owed to it; (d) any material change or amendment to a material agreement by which the Company or any of its assets or properties is bound or subject to; (e) any loans made by the Company to its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business; (f) any resignation or termination of any executive officer or key employee of the Company; (g) any change in any compensation arrangement or agreement with any employee; (h) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets; (i) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and that is not material to the business, properties, prospects or financial condition of the Company; (j) any declaration, setting aside or payment or other distribution in respect of any of the Company’s Stock, or any direct or indirect redemption, purchase or other acquisition of any of such Stock by the Company; (k) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its properties or assets, except liens for taxes not yet due or payable; (l) any receipt of notice that there has been a loss of, or order cancellation by, any major customer of the Company; (m) any other event or condition of any character that has had or is reasonably likely to have a Material Adverse Effect; or (n) any agreement or commitment by the Company to do any of the things described in this Section 3.9.
3.10 Material Contracts. Except for the agreements explicitly contemplated hereby, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company, individually, in excess of $50,000, or in the aggregate, in excess of $100,000, (ii) the license of any patent, copyright, trade secret or other proprietary right to or from the Company, (iii) the grant of rights to manufacture, produce, assemble, license, market or sell the Company’s products or affect the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) agreements with any shareholder of the Company, and (v) agreements upon which the business of the Company is substantially dependent (each, a “Material Contract”, collectively the “Material Contracts”). All of the Material Contracts are valid, binding and in full force and effect in all material respects, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies and to general principles of equity. The Company is not in material default under any of such Material Contracts.
3.11 Title to Properties and Assets; Liens, etc. The Company has good and marketable title to its properties and assets, and has good title to all its leasehold interests, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (i) liens for current taxes not yet due and payable, and (ii) liens in respect of pledges or deposits under workers’ compensation laws or similar legislation. With respect to the property and assets it leases, the Company is in compliance with such leases in all material respects and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances, subject to clauses (i)-(ii) above. All facilities, machinery, equipment, fixtures, vehicles and other properties owned, leased or used by the Company are in good operating condition and repair and are reasonably fit and usable for the purposes for which they are being used.
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3.12 Intellectual Property.
(a) Ownership. The Company owns or licenses pursuant to valid license agreements, without any conflict with or infringement of the rights of others, sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses (software or otherwise), information, processes and similar proprietary rights (“Intellectual Property”) necessary to the business of the Company as presently conducted. There are no outstanding options, licenses or agreements relating to the Intellectual Property, and the Company is not bound by or a party to any options, licenses or agreements with respect to the Intellectual Property of any other person or entity. The Company has not received any written or oral communication alleging that the Company has violated any of the Intellectual Property of any other person or entity. The Company is not obligated to make any payments by way of royalties, fees or otherwise to any owner or licensor of or claimant to any Intellectual Property with respect to the use thereof in connection with the conduct of its business as presently conducted.
(b) No Breach by Employees. The Company is not aware that any of its employees is obligated under any contract or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would materially interfere with the use of his or her efforts to promote the interests of the Company or that would conflict with the Company’s business as presently conducted. Neither the execution nor delivery of this Agreement, nor the carrying on of the Company’s business by the employees of the Company, nor the conduct of the Company’s business as presently conducted, will, to the Company’s knowledge, conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contract, covenant or instrument under which any of such employees is now obligated. The Company does not believe it is or will be necessary to use any inventions of any of its employees made prior to their employment by the Company.
(c) Proprietary Information and Invention Assignment. Each technical and senior managerial employee of the Company has executed a confidential information and invention assignment agreement. Each consultant to the Company that has had access to the Company’s Intellectual Property has entered into an agreement containing appropriate confidentiality and invention assignment provisions. To the knowledge of the Company, no officer, employee or consultant of the Company is in violation of such confidential information and invention assignment agreement or any prior employee contract or proprietary information agreement with any other corporation or third party.
3.13 Litigation, etc. There are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, currently threatened against the Company or its properties before any court or governmental agency. The Company is not a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality.
3.14 Permits. The Company has all franchises, permits, licenses, and any similar authority necessary for the conduct of its business as now being conducted by it. The Company is not in default in any material respect under any of such franchises, permits, licenses or other similar authority.
3.15 Registration and Voting Rights. The Company is presently not under any obligation and has not granted any rights to register under the Securities Act any of its presently outstanding securities or any of its securities that may hereafter be issued. Except as set forth in the Shareholders Agreement, no shareholder of the Company has entered into any agreements with respect to the voting of Stock of the Company.
3.16 Disclosure. To the Company’s knowledge, neither this Agreement nor any other documents or certificates delivered in connection herewith, when taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained herein or therein not misleading in light of the circumstances under which they were made.
3.17 Employees.
(a) To the best of the Company’s knowledge, there are no strike, labor dispute or union organization activities pending or threatened between it and its employees. None of its employees belongs to any union or collective bargaining unit. The Company is not a party to or bound by any currently effective employment contract, deferred compensation agreement, bonus plan, incentive plan, profit sharing plan, retirement agreement, or other employee compensation agreement. The Company is not aware that any officer or key employee intends to terminate his employment with the Company, nor does the Company have a present intention to terminate the employment of any officer or key employee. Subject to general principles related to wrongful termination of employees, the employment of each officer and employee of the Company is terminable at the will of the Company.
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(b) As of the date hereof, the Company employs 10 full-time employees and 1 part-time employee.
(c) The Company is not delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants or independent contractors. The Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification and collective bargaining. The Company has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing.
(d) The Company has not made any representations regarding equity incentives to any officer, employee, director or consultant that are inconsistent with Exhibit H.
(e) Each former key employee whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment and assigning all Intellectual Property to the Company.
3.18 Employee Benefit Plans. The Schedule of Exceptions sets forth each employee benefit plan maintained, established or sponsored by the Company, or which the Company participates in or contributes to, which is subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Company has made all required contributions and has no liability to any such employee benefit plan, other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, and has complied in all material respects with all applicable laws for any such employee benefit plan.
3.19 Insurance. The Company has in full force and effect fire and casualty policies, a general liability policy, a workers compensation policy, and a professional liability policy, in such amounts customary for companies in similar businesses similarly situated.
3.20 Brokers or Finders. The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or any of the transactions contemplated hereby.
3.21 Taxes. The Company has timely filed all tax returns required to be filed by it in accordance with applicable laws, and all such tax returns were correct and complete in all material respects. All taxes (whether or not reflected on a tax return) due and owing by the Company prior to the Closing have been paid. The Company is not currently the beneficiary of any extension of time within which to file any tax return. The Company does not have any item of income that accrued in a prior tax period but is required to be recognized in a tax period ending after the Closing. There have been no examinations or audits of any tax returns or reports by any applicable federal, state, local or foreign governmental agency.
3.22 Environmental and Safety Laws. To its knowledge, the Company is not in violation of any applicable statute, law, or regulation relating to the environment or occupational health and safety, and to its knowledge, no material expenditures are or will be required in order to comply with any such existing statue, law, or regulation.
3.23 Real Property Holding Corporation. The Company is not a “real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
3.24 Corporate Documents. The certificate of incorporation and bylaws of the Company and the Shareholders Agreement are in the form previously provided to the Investors. The copy of the minute books of the Company provided to the Investors contains complete and correct minutes of all meetings of directors and shareholders and all actions by written consent without a meeting by the directors and shareholders since the date of incorporation and reflects all actions by the directors (and any committee of directors) and shareholders with respect to all transactions referred to in such minutes completely and accurately in all material respects.
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3.25 Certain Transactions.
(a) Other than standard employee benefits generally made available to all employees, there are no agreements, understandings or proposed transactions between the Company and any of its current or former officers, directors, consultants or key employees, or any Affiliate thereof.
(b) The Company is not indebted, directly or indirectly, to any of its directors, officers or employees or to their respective spouses or children or to any Affiliate of any of the foregoing, other than in connection with expenses or advances of expenses incurred in the ordinary course of business and for other customary employee benefits made generally available to all employees. None of the Company’s current directors, officers or employees, or any members of their immediate families, or any Affiliate of the foregoing are, directly or indirectly, indebted to the Company, have any (i) to the best of the Company’s knowledge, material commercial, industrial, banking, consulting, legal, accounting, charitable or familial relationship with any of the Company’s customers, suppliers, service providers, joint venture partners, licensees and competitors, (ii) to the best of the Company’s knowledge, direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation which competes with the Company except that directors, officers, employees or stockholders of the Company may own stock in (but not exceeding two percent (2%) of the outstanding capital stock of) publicly traded companies that may compete with the Company; or (iii) financial interest in any material contract with the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF INVESTORS
The Investor represents and warrants to the Company as follows:
4.1 Investment Intent. The Investor is acquiring the Shares for investment for the Investor’s own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof, and that the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. The Investor further represents that it does not have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participation to such person or entity or to any third person or entity with respect to any of the Shares.
4.2 Investment Experience. The Investor has such knowledge and experience in financial and business matters so that the Investor is capable of evaluating the merits and risks of the Investor’s investment in the Company.
4.3 Access to Data. The Investor has had an opportunity to ask questions of, and receive answers from, the officers of the Company concerning this Agreement and the Ancillary Agreements, the exhibits and schedules attached hereto and thereto and the transactions contemplated by this Agreement and the Ancillary Agreements, as well as the Company’s business, properties, management and financial affairs. The Investor believes that it has received all the information the Investor considers necessary or appropriate for deciding whether to purchase the Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Article 3 of this Agreement or the right of the Investor to rely thereon.
4.4 Accredited Investor. The Investor is an “accredited investor” within the meaning of Regulation D, Rule 501(a), promulgated by the Securities and Exchange Commission under the Securities Act.
4.5 Restricted Securities. The Investor understands that the Shares have not been, and will not be, registered under the Securities Act or applicable state securities laws, by reason of specific exemptions from the registration provisions of the Securities Act and state securities laws which depend upon, among other things, the bona fide nature of the investment intent and the accuracy of the Investor’s representations as expressed herein. The Investor understands that the Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Investor must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares, and on requirements relating to the Company which are outside of the Investor’s control, and which the Company is under no obligation and may not be able to satisfy.
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4.6 No Public Market. The Investor understands and acknowledges that no public market now exists for any of the securities issued by the Company and that the Company has made no assurances that a public market will ever exist for the Company’s securities.
4.7 Authorization.
(a) The Investor has all requisite power and authority to execute and deliver this Agreement and the Ancillary Agreements (to which the Investor is a party), to purchase the Shares hereunder and to carry out and perform the Investor’s obligations hereunder and thereunder. All action on the part of the Investor necessary for the authorization, execution, delivery and performance of this Agreement and the Ancillary Agreements (to which the Investor is a party), and the performance of all of the Investor’s obligations hereunder and thereunder, has been taken.
(b) This Agreement and the Ancillary Agreements (to which the Investor is a party), when executed and delivered by the Investor, will constitute valid and legally binding obligations of the Investor, enforceable in accordance with their terms except: (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies or by general principles of equity.
(c) No consent, approval, authorization, order, filing, registration or qualification of or with any court, governmental authority or third person is required to be obtained by the Investor in connection with the execution and delivery of this Agreement and the Ancillary Agreements (to which the Investor is a party) by the Investor or the performance of the Investor’s obligations hereunder or thereunder.
4.8 Brokers or Finders. The Investor has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Investor, any liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or any of the transactions contemplated hereby.
4.9 Legends. The Investor understands and agrees that the certificates evidencing the Shares, or any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall bear the following legends:
“THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND TRANSFERABLE ONLY UPON COMPLIANCE WITH THE TERMS OF AN AGREEMENT AMONG THE SHAREHOLDERS OF THIS CORPORATION AND THE CORPORATION RESTRICTING TRANSFER OF SHARES OF THE CORPORATION. ANY TRANSFER IN VIOLATION OF THAT AGREEMENT IS INVALID. THE AGREEMENT IS BINDING ON ANYONE WHO ACQUIRES SHARES. A COPY OF THE AGREEMENT IS AVAILABLE FOR INSPECTION AT THE OFFICE OF THE CORPORATION.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND/OR APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”
ARTICLE 5
COVENANTS
5.1 Use of Proceeds. The Company will use the proceeds from the sale of the Shares as follows:
(a) For the Company’s installation of a full commercial scale steam cooled tubular reactor in the Company’s laboratory. The minimum tube length will be 20 feet;
(b) To hire a process engineer to interface with the Investor on projects; and
(c) Subject to Sections 5.1(a)-(b) above, as otherwise directed by the Company’s board of directors.
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5.2 Put Option. At any time on or after the fifth anniversary of the date of the issuance of the Shares, if the Company has not paid the Investor a cumulative per share amount in dividends equal to the per share purchase price paid by the Investor for the applicable Shares, then the Investor shall have the right to require the Company to repurchase all or a portion of those Shares (the “Put Option”), in accordance with the following terms.
(a) Number of Shares Subject to Put Option. The number of Shares that are subject to the Put Option will be limited to the number of Shares then-owned by the Investor that have not been converted to Common Stock less a number of Shares determined by dividing (i) the cumulative amount of dividends then paid by the Company to the Investor, by (ii) $7,964.77.
For Example: If (i) the Investor purchased 376.65882 shares of Series A Stock at a purchase price of $7,964.77 per share, (ii) the Company had paid $2,000,000 in dividends to the Investor, and (iii) on or after 5 years the Investor still owned all of the shares and none of the shares had been converted to Common Stock, then the number of shares subject to the Put Option are 125.55302—calculated as follows: 376.65882 minus ($2,000,000 divided by $7,964.77).
(b) Put Option Notice. In order to exercise the Put Option, the Investor shall provide written notice to the Company of such election (the “Put Option Notice”). The Put Option Notice shall include the number of Shares that the Investor is electing to have the Company repurchase under the Put Option. The Investor may only provide one Put Option Notice to the Company per calendar year.
(c) Repurchase Price. The repurchase price (the “Repurchase Price”) shall be equal to the following: The proportion that the number of Shares subject to the Put Option Notice bears to the total number of Preferred Stock and Common Stock then issued and outstanding multiplied by the Company’s enterprise value determined based on an appraisal price determined by a mutually agreed upon independent valuation firm without any discount for minority status or illiquidity of the equity securities of the Company. The cost of the appraisal shall be borne by the Investor.
(d) Closing of Repurchase. The Company and the Investor shall close the repurchase on or before the later to occur of, (i) 90 days after the Company’s receipt of the Put Option Notice or (ii) 60 days after the determination of the appraisal price under Section 5.2(b). On or before the closing, the Company and the Investor shall enter into a mutually acceptable repurchase agreement under which (y) the Company shall pay the Repurchase Price to the Investor in cash, and (z) the Investor shall surrender to the Company the applicable certificates evidencing the Shares being repurchased. If the Company is not able to pay the Repurchase Price in cash to the Investor at the closing of the repurchase, then the closing shall be delayed and the Company shall undertake its best efforts during the 120-day period immediately following the scheduled closing of the purchase so that such amounts may be paid in full in cash. If, notwithstanding such efforts, the Company is unable to repurchase all of the Shares the Investor elected to have the Company repurchase under the Put Option in cash within such 120-day period, the Company will pay the maximum portion of such Repurchase Price to Investor in cash, and shall pay the remaining portion of the Repurchase Price by issuing to the Investor a fully amortizing note with a term to maturity not to exceed one year, accruing interest at an annual rate equal to 12.00% per annum payable in equal monthly payments of principal and interest and with customary terms, conditions, benefits and protections. Notwithstanding anything contained in this Section 5.2(d) to the contrary, if the Company is not able to pay the Repurchase Price in full in cash either at the scheduled closing or delayed closing, the Investor may rescind the repurchase (or any portion thereof) at the Investor’s sole election. If the Company fails to satisfy its obligations pursuant to this Section 5.2(d), the Investor may pursue any and all rights and remedies at law or in equity.
(e) Termination of Put Option. The Put Option shall terminate upon the earliest of, (i) immediately prior to the closing of a firmly underwritten, public offering by the Company of shares of Common Stock, registered under the Securities Act of 1933, as amended, (ii) immediately prior to the Company’s closing of a merger, reverse merger or consolidation with another corporation and such surviving entity’s common stock is registered under the Securities Act of 1933, as amended, (iii) the conversion of any Shares into fully paid and non-assessable shares of Common Stock; provided, however, the Put Option shall only terminate as to those Shares converted, (iv) the written consent to such termination by the Investor or (v) 10 years after the execution of this Agreement.
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ARTICLE 6
MISCELLANEOUS
6.1 Amendment. Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument referencing this Agreement and signed by the Company and the Investor.
6.2 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or otherwise delivered by hand, messenger or courier service addressed to the appropriate party at the address specified below (or to such other address or addresses as any such party may from time to time designate as to itself by like notice):
| (a) | if to the Company, to the attention of the President at: |
Emerging Fuels Technology, Inc.
11367 E. 61st St.
Broken Arrow, OK 74012
Facsimile: (918) 286-6801
| (b) | if to the Investor, to the attention of the General Counsel at: |
Black & Veatch Corporation
11401 Lamar Ave.
Overland Park, KS 66211
Facsimile: (913) 458-2934
Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger or courier service, when delivered, or (ii) if sent by mail, at the earlier of its receipt or three (3) days after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if sent by facsimile, upon confirmation of facsimile transfer.
6.3 Expenses. The Company and the Investor shall each pay their own expenses in connection with the transactions contemplated by this Agreement.
6.4 Survival. The representations and warranties of the Company and the Investor contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing for a period of two (2) years after Closing and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Investor or the Company. The covenants and obligations of the Company and the Investor contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement indefinitely.
6.5 Indemnification. The Company agrees to indemnify and hold harmless the Investor and the Investor’s representatives, agents, advisors, legal representatives, successors and assigns from and against any and all liability, loss, damage, claim, cause of action, and expenses, caused, directly or indirectly, by or as a result of (a) any breach of any of the representations and warranties made by the Company to the Investor under Article 3 or (b) any breach of any covenant or obligation of the Company in this Agreement. The Investor agrees to indemnify and hold harmless the Company and its owners, directors, managers, officers, representatives, agents, advisors, legal representatives, successors and assigns from and against any and all liability, loss, damage, claim, cause of action, and expenses, caused, directly or indirectly, by or as a result of (a) any breach of any of the representations and warranties made by the Investor to the Company under Article 4 or (b) any breach of any covenant or obligation of the Investor in this Agreement.
6.6 Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
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6.7 Entire Agreement. This Agreement, including the exhibits attached hereto, constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. No party shall be liable or bound to any other party in any manner with regard to the subjects hereof or thereof by any warranties, representations or covenants except as specifically set forth herein or therein.
6.8 Delays or Omissions. Except as expressly provided herein, no delay or omission to exercise any right, power or remedy accruing to any party to this Agreement upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy of such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party to this Agreement, shall be cumulative and not alternative.
6.9 Severability. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such court will replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Agreement shall be enforceable in accordance with its terms.
6.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
6.11 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Oklahoma, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
6.12 Jurisdiction; Venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the courts of the Northern District of Oklahoma).
6.13 Further Assurances. Each party hereto agrees to execute and deliver all such other and additional instruments and documents and do all such other acts and things as may be necessary to more fully effectuate this Agreement.
6.14 Attorney’s Fees. In the event that any suit or action is instituted to enforce any provisions in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
6.15 No Commitment for Additional Financing. The Company acknowledges and agrees that the Investor has not made any representation, undertaking, commitment or agreement to provide or assist the Company in obtaining any financing, investment or other assistance, other than the purchase of the Shares as set forth herein and subject to the conditions set forth herein. In addition, the Company acknowledges and agrees that any obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment may only be created by a written agreement, signed by the Investor and the Company, setting forth the terms and conditions of such financing or investment. The Investor shall have the right, in the Investor’s sole and absolute discretion, to refuse or decline to participate in any other financing of or investment in the Company, and shall have no obligation to assist or cooperate with the Company in obtaining any financing, investment or other assistance.
[Signature page follows]
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The parties are signing this Stock Purchase Agreement as of the date stated in the introductory clause.
| “COMPANY” | |||
| Emerging Fuels Technology, Inc., | |||
| an Oklahoma corporation | |||
| /s/ Kenneth L. Agee | |||
| Kenneth L. Agee, President | |||
| “INVESTOR” | |||
| Corporation, | |||
| a Delaware corporation | |||
| By: | /s/ Doug Miller | ||
| Name: | Doug Miller | ||
| Title: | Vice President | ||
[Signature Page to Stock Purchase Agreement]
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EXHIBIT 6.1
Broker-Dealer Agreement
This agreement (together with exhibits and schedules, the “Agreement”) is entered into by and between Emerging Fuels Technology, Inc (“Client”), a Oklahoma Corporation, and Dalmore Group, LLC., a New York Limited Liability Company (“Dalmore”). Client and Dalmore agree to be bound by the terms of this Agreement, effective as of May 24, 2021 (the “Effective Date”):
Whereas, Dalmore is a registered broker-dealer providing services in the equity and debt securities market, including offerings conducted via SEC approved exemptions such as Reg D 506(b), 506(c), Regulation A+, Reg CF and others;
Whereas, Client is offering securities directly to the public in an offering exempt from registration under Regulation A (the “Offering”); and
Whereas, Client recognizes the benefit of having Dalmore as a service provider for investors who participate in the Offering (“Investors”).
Now, Therefore, in consideration of the mutual promises and covenants contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Appointment, Term, and Termination
a. Client hereby engages and retains Dalmore to provide operations and compliance services at Client’s discretion.
b. The Agreement will commence on the Effective Date and will remain in effect for a period of twelve (12) months and will renew automatically for successive renewal terms of twelve (12) months each unless any party provides notice to the other party of non-renewal at least sixty (60) days prior to the expiration of the current term. If Client defaults in performing the obligations under this Agreement, the Agreement may be terminated (i) upon sixty (60) days written notice if Client fails to perform or observe any material term, covenant or condition to be performed or observed by it under this Agreement and such failure continues to be unremedied, (ii) upon written notice, if any material representation or warranty made by either Provider or Client proves to be incorrect at any time in any material respect, (iii) in order to comply with a Legal Requirement, if compliance cannot be timely achieved using commercially reasonable efforts, after providing as much notice as practicable, or (iv) upon thirty (30) days’ written notice if Client or Dalmore commences a voluntary proceeding seeking liquidation, reorganization or other relief, or is adjudged bankrupt or insolvent or has entered against it a final and unappeable order for relief, under any bankruptcy, insolvency or other similar law, or either party executes and delivers a general assignment for the benefit of its creditors. The description in this section of specific remedies will not exclude the availability of any other remedies. Any delay or failure by Client to exercise any right, power, remedy or privilege will not be construed to be a waiver of such right, power, remedy or privilege or to limit the exercise of such right, power, remedy or privilege. No single, partial or other exercise of any such right, power, remedy or privilege will preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege. All terms of the Agreement, which should reasonably survive termination, shall so survive, including, without limitation, limitations of liability and indemnities, and the obligation to pay Fees relating to Services provided prior to termination.
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2. Services. Dalmore will perform the services listed on Exhibit A attached hereto and made a part hereof, in connection with the Offering (the “Services”). Unless otherwise agreed to in writing by the parties.
3. Compensation. As compensation for the Services, Client shall pay to Dalmore a fee equal to one hundred (100) basis points on the aggregate amount raised by the Client. This will only start after FINRA Corporate Finance issues a No Objection Letter for the offering. Client authorizes Dalmore to deduct the fee directly from the Client’s third party escrow or payment account.
There will also be a one time due diligence expense for out of pocket expenses of $5,000. Payment is due and payable upon execution of this agreement. The advance payment will cover expenses anticipated to be incurred by the firm such a preparing the FINRA filing, due diligence expenses, working with the Client’s SEC counsel in providing information to the extent necessary, and any other services necessary and required prior to the approval of the offering. The firm will refund a portion of the payment related to the advance to the extent it was not used, incurred or provided to the Client.
The Client shall also engage Dalmore as a consultant to provide ongoing general consulting services relating to the Offering such as coordination with third party vendors and general guidance with respect to the Offering. The Client will pay a one time Consulting Fee of $20,000 which will be due and payable immediately after FINRA issues a No Objection Letter.
4. Regulatory Compliance
a. Client and all its third party providers shall at all times (i) comply with direct requests of Dalmore; (ii) maintain all required registrations and licenses, including foreign qualification, if necessary; and (iii) pay all related fees and expenses (including the FINRA Corporate Filing Fee), in each case that are necessary or appropriate to perform their respective obligations under this Agreement. Client shall comply with and adhere to all Dalmore policies and procedures.
FINRA Corporate Filing Fee for this $55,000,000, best efforts offering will be $8,750 and will be a pass- through fee payable to Dalmore, from the Client, who will then forward it to FINRA as payment for the filing. Since this Offering involves ongoing filings, Dalmore will invoice the Client for the FINRA fee due and the $1,000 1-APOS filing fee prior to each filing. This fee is due and payable prior to any submission by Dalmore to FINRA.
b. Client and Dalmore will have the shared responsibility for the review of all documentation related to the Transaction but the ultimate discretion about accepting a client will be the sole decision of the Client. Each Investor will be considered to be that of the Client’s and NOT Dalmore.
c. Client and Dalmore will each be responsible for supervising the activities and training of their respective sales employees, as well as all of their other respective employees in the performance of functions specifically allocated to them pursuant to the terms of this Agreement.
d. Client and Dalmore agree to promptly notify the other concerning any material communications from or with any Governmental Authority or Self Regulatory Organization with respect to this Agreement or the performance of its obligations, unless such notification is expressly prohibited by the applicable Governmental Authority.
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5. Role of Dalmore. Client acknowledges and agrees that Client will rely on Client’s own judgment in using Dalmore’ Services. Dalmore (i) makes no representations with respect to the quality of any investment opportunity or of any issuer; (ii) does not guarantee the performance to and of any Investor; (iii) will make commercially reasonable efforts to perform the Services in accordance with its specifications; (iv) does not guarantee the performance of any party or facility which provides connectivity to Dalmore; and (v) is not an investment adviser, does not provide investment advice and does not recommend securities transactions and any display of data or other information about an investment opportunity, does not constitute a recommendation as to the appropriateness, suitability, legality, validity or profitability of any transaction. Nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship of any kind.
6. Indemnification.
a. Indemnification by Client. Client shall indemnify and hold Dalmore, its affiliates and their representatives and agents harmless from, any and all actual or direct losses, liabilities, judgments, arbitration awards, settlements, damages and costs (collectively, “Losses”), resulting from or arising out of any third party suits, actions, claims, demands or similar proceedings (collectively, “Proceedings”) to the extent they are based upon (i) a breach of this Agreement by Client, (ii) the wrongful acts or omissions of Client, or (iii) the Offering.
b. Indemnification by Dalmore. Dalmore shall indemnify and hold Client, Client’s affiliates and Client’s representatives and agents harmless from any Losses resulting from or arising out of Proceedings to the extent they are based upon (i) a breach of this Agreement by Dalmore or (ii) the wrongful acts or omissions of Dalmore or its failure to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Agreement.
c. Indemnification Procedure. If any Proceeding is commenced against a party entitled to indemnification under this section, prompt notice of the Proceeding shall be given to the party obligated to provide such indemnification. The indemnifying party shall be entitled to take control of the defense, investigation or settlement of the Proceeding and the indemnified party agrees to reasonably cooperate, at the indemnifying party's cost in the ensuing investigations, defense or settlement.
7. Notices. Any notices required by this Agreement shall be in writing and shall be addressed, and delivered or mailed postage prepaid, or faxed or emailed to the other parties hereto at such addresses as such other parties may designate from time to time for the receipt of such notices. Until further notice, the address of each party to this Agreement for this purpose shall be the following:
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If to the Client:
Emerging Fuels Technology, Inc
6024 S 116th East Ave
Tulsa, OK 74146
Attn: Kenneth L. Agee - President
Tel: 918-605-5455
Email: [email protected]
If to Dalmore:
Dalmore Group, LLC.
525 Green Place
Woodmere, NY 11598
Attn: Etan Butler, Chairman
Tel: 917-319-3000
8. Confidentiality and Mutual Non-Disclosure:
a. Confidentiality.
i. Included Information. For purposes of this Agreement, the term “Confidential Information” means all confidential and proprietary information of a party, including but not limited to (i) financial information, (ii) business and marketing plans, (iii) the names of employees and owners, (iv) the names and other personally-identifiable information of users of the third-party provided online fundraising platform, (v) security codes, and (vi) all documentation provided by Client or Investor.
ii. Excluded Information. For purposes of this Agreement, the term “confidential and proprietary information” shall not include (i) information already known or independently developed by the recipient without the use of any confidential and proprietary information, or (ii) information known to the public through no wrongful act of the recipient.
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iii. Confidentiality Obligations. During the Term and at all times thereafter, neither party shall disclose Confidential Information of the other party or use such Confidential Information for any purpose without the prior written consent of such other party. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing, a party may disclose Confidential Information (i) if required to do by order of a court of competent jurisdiction, provided that such party shall notify the other party in writing promptly upon receipt of knowledge of such order so that such other party may attempt to prevent such disclosure or seek a protective order; or (ii) to any applicable governmental authority as required by applicable law. Nothing contained herein shall be construed to prohibit the SEC, FINRA, or other government official or entities from obtaining, reviewing, and auditing any information, records, or data. Issuer acknowledges that regulatory record-keeping requirements, as well as securities industry best practices, require Provider to maintain copies of practically all data, including communications and materials, regardless of any termination of this Agreement.
9. Miscellaneous.
a. ANY DISPUTE OR CONTROVERSY BETWEEN THE CLIENT AND PROVIDER RELATING TO OR ARISING OUT OF THIS AGREEMENT WILL BE SETTLED BY ARBITRATION BEFORE AND UNDER THE RULES OF THE ARBITRATION COMMITIEE OF FINRA.
b. This Agreement is non-exclusive and shall not be construed to prevent either party from engaging in any other business activities
c. This Agreement will be binding upon all successors, assigns or transferees of Client. No assignment of this Agreement by either party will be valid unless the other party consents to such an assignment in writing. Either party may freely assign this Agreement to any person or entity that acquires all or substantially all of its business or assets. Any assignment by the either party to any subsidiary that it may create or to a company affiliated with or controlled directly or indirectly by it will be deemed valid and enforceable in the absence of any consent from the other party.
d. Neither party will, without prior written approval of the other party, place or agree to place any advertisement in any website, newspaper, publication, periodical or any other media or communicate with the public in any manner whatsoever if such advertisement or communication in any manner makes reference to the other party, to any person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control, with the other party and to the clearing arrangements and/or any of the Services embodied in this Agreement. Client and Dalmore will work together to authorize and approve co-branded notifications and client facing communication materials regarding the representations in this Agreement. Notwithstanding any provisions to the contrary within, Client agrees that Dalmore may make reference in marketing or other materials to any transactions completed during the term of this Agreement, provided no personal data or Confidential Information is disclosed in such materials.
e. THE CONSTRUCTION AND EFFECT OF EVERY PROVISION OF THIS AGREEMENT, THE RIGHTS OF THE PARTIES UNDER THIS AGREEMENT AND ANY QUESTIONS ARISING OUT OF THE AGREEMENT, WILL BE SUBJECT TO THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party
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f. If any provision or condition of this Agreement will be held to be invalid or unenforceable by any court, or regulatory or self-regulatory agency or body, the validity of the remaining provisions and conditions will not be affected and this Agreement will be carried out as if any such invalid or unenforceable provision or condition were not included in the Agreement.
g. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement relating to the subject matter herein. The Agreement may not be modified or amended except by written agreement.
h. This Agreement may be executed in multiple counterparts and by facsimile or electronic means, each of which shall be deemed an original but all of which together shall constitute one and the same agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE(S)]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| CLIENT: Emerging Fuels Technology, Inc | ||
| By | /s/ Kenneth L. Agee | |
| Name: | Kenneth L. Agee | |
| Its: | President | |
| Dalmore Group, LLC: | ||
| By | /s/ Etan Butler | |
| Name: | Etan Butler | |
| Its: | Chairman | |
| 7 |
Exhibit A
Services:
| a. | Dalmore Responsibilities – Dalmore agrees to: |
| i. | Review investor information, including KYC (Know Your Customer) data, perform AML (Anti-Money Laundering) and other compliance background checks, and provide a recommendation to Client whether or not to accept investor as a customer of the Client; |
| ii. | Review each investors subscription agreement to confirm such Investors participation in the offering, and provide a determination to Client whether or not to accept the use of the subscription agreement for the Investors participation; |
| iii. | Contact and/or notify the issuer, if needed, to gather additional information or clarification on an investor; |
| iv. | Not provide any investment advice nor any investment recommendations to any investor; |
| v. | Keep investor details and data confidential and not disclose to any third-party except as required by regulators or in our performance under this Agreement (e.g. as needed for AML and background checks); |
| vi. | Coordinate with third party providers to ensure adequate review and compliance. |
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EXHIBIT 6.2
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This First Amended and Restated Employment Agreement (the “Agreement”) is made and entered into effective as of April 29, 2014, by and between Emerging Fuels Technology, Inc. (the “Company”), an Oklahoma corporation, and Kenneth L. Agee (“Employee"), an individual.
WHEREAS, the Company and Employee entered into that certain Employment Agreement (the “Employment Agreement”) dated as of January 1, 2010;
WHEREAS, the Company and Employee desire to amend and restate the Employment Agreement to continue Employee’s employment with the Company on the terms and conditions set forth herein and the Company has deemed it to be in its best interest to enter into this Agreement with Employee.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the Company and Employee hereby agree as follows:
1. Term of Employment. Employee’s employment with the Company will continue until such employment is terminated either by the Company or Employee pursuant to the terms and conditions of this Agreement.
2. Salary and Benefits. The Company shall pay Employee a salary of $220,000 per year, payable in accordance with the Company’s payroll policies and procedures. You will be eligible to participate, to the extent you are eligible, in any group medical and hospitalization, profit sharing, retirement, life insurance or other employee benefit plans which the Company may from time to time offer to its employees. All group insurance provided to Employee will be in such form and provide such coverage as is provided to other employees of the Company.
3. Bonus. You will be eligible to participate in the Company’s bonus program for executive management members. Any bonus you receive will be commensurate with your position and will be subject to the Company’s policies and procedures, the Company’s overall financial and operational performance, and evaluation of your individual performance.
4. Duties and Position. The Company hires Employee in the capacity of President. Employee’s duties may be modified from time to time at the Company's sole discretion.
5. Employee to Devote Full Time to Company. Employee will devote his or her full time, attention, and energies to the business of the Company, and, during his or her employment with the Company, will not engage in any other business activity, regardless of whether such activity is pursued for profit, gain, or other pecuniary advantage. Employee is not prohibited from making personal investments in any other businesses provided those investments do not require active involvement in the operation of said companies or create a conflict with the Company.
6. Confidential Information and Invention Assignment Agreement. As a condition of employment, Employee must sign the Company’s Confidential Information and Invention Assignment Agreement.
7. Reimbursement of Expenses. Employee may incur reasonable expenses for furthering the Company's business, including expenses for entertainment, travel, and similar items. Subject to Company’s reimbursement policies and procedures, the Company shall reimburse Employee for all reasonable business expenses after Employee presents an itemized account of such expenditures.
8. Vacation. Employee shall be entitled to a yearly vacation of 5 weeks at full pay in accordance with the Company’s policies in effect from time to time.
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9. Termination of Employment by the Company. The Company may terminate Employee’s employment with the Company for any reason whatsoever, with or without cause, upon 30 days' written notice to Employee. If the Company requests, Employee will continue to perform his or her duties and will be paid Employee’s regular salary up to the date of termination. On the date of termination, the Company will pay to Employee (i) a severance amount equal to 3 times Employee’s regular monthly salary and (ii) any compensation that Employee has earned as of the date of termination but not yet received. To the extent Employee is eligible to receive COBRA insurance and elects to receive such insurance, the Company will reimburse Employee for premiums associated with such insurance for a period of 3 months following the date of termination. In addition, if the Company’s board of directors, in their sole discretion, awards bonuses for the year in which Employee is terminated, the Company will pay to Employee his or her pro rata share of any such bonus. Such payment to be made within 30 days after the Company’s board of directors awards any such bonuses.
In the event of a Change of Control (as defined below) of the Company and (i) during the three-month period immediately preceding any Change of Control or the one-year period immediately following any Change of Control, the Company terminates Employee’s employment for any reason other than Employee’s death, Disability (as defined below), retirement or Just Cause (as defined below) or (ii) Employee terminates employment for Good Reason (as defined below), then the Company or its successor shall pay Employee his or her regular salary in effect at the time of the notice of termination through the date of termination. On the date of termination, the Company will pay to Employee (i) a severance amount equal to 18 times Employee’s regular monthly salary and (ii) any compensation that Employee has earned as of the date of termination but not yet received. To the extent Employee is eligible to receive COBRA insurance and elects to receive such insurance, the Company will reimburse Employee for premiums associated with such insurance for a period of 18 months following the date of termination. In addition, if the Company’s board of directors, in their sole discretion, awards bonuses for the year in which Employee is terminated, the Company will pay to Employee his or her pro rata share of any such bonus. Such payment to be made within 30 days after the Company’s board of directors awards any such bonuses.
The following definitions shall apply regarding this provision:
“Change of Control” will mean any of the following: (1) a majority of the common stock of the Company ceases to be owned by Ken Agee, Kym Arcuri and Rafael Espinoza; (2) the individuals who, as of the effective date of this Agreement, constitute the Board of Directors of the Company (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the effective date of this Agreement whose election is approved by a vote of 100% of the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board; (3) Approval by the shareholders of the Company of a reorganization, merger or consolidation, in which 50% or more of the combined common stock voting power of the Company, then outstanding, is changed; (4) Approval by the shareholders of the Company of the liquidation or dissolution of the Company or the sale or other disposition of all or substantially all of the assets of the Company occurs; or (5) Completion of a public offering in which 40% or more of the common stock of the Company is sold in the offering.
“Disability” will mean any one or more of the following (1) Employee has been declared legally incompetent by a final court decree (the date of such decree being deemed to be the date on which the disability occurred); (2) Employee receives disability insurance benefits from any disability income insurance policy maintained by the Company for a period of three consecutive months; or (3) Employee has been found to be disabled pursuant to a disability determination, meaning a finding that Employee because of a medically determinable disease, injury, or other mental or physical disability, is unable to perform substantially all of their regular duties to the Company and that such disability is determined or reasonably expected to last at least six months. The Disability determination shall be based upon the written opinion of the physician regularly attending Employee whose disability is in question. The date of any written opinion conclusively finding Employee to be disabled is the date on which the Disability will be deemed to have occurred.
“Just Cause” will mean any one or more of the following: (1) Employee’s material breach of his obligations, duties and responsibilities under any term or provision of this Agreement which remains uncured for a period of five days after written notice by the Company to Employee; (2) Employee’s failure to adhere to the reasonable standards of performance prescribed by the Company; (3) Employee’s act of insubordination to the Company’s Board of Directors; (4) Employee’s gross negligence or willful misconduct in the performance of his duties under this Agreement; (5) Employee’s dishonesty, fraud, misappropriation or embezzlement in the course of, related to or connected with the business of the Company; (6) Employee’s conviction of a felony; or (7) Employee’s failure (after written notice to Employee of such failure and Employee not correcting such failure within five days of such notice) to devote his time, attention and best efforts to the business of the Company as provided in this Agreement.
| 2 |
“Good Reason” shall mean: (1) the assignment to Employee of any duties materially inconsistent in any respect with Employee’s then current position (including status, offices, titles and reporting requirements), authority, duties or responsibilities, or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Employee; (2) any material failure by the Company to comply with any of the provisions of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Employee; (3) the Company’s requirement for Employee to be based at any office outside the Tulsa, Oklahoma metropolitan area; or (4) any purported termination by the Company of Employee’s employment otherwise than as expressly permitted by this Agreement.
10. Termination of Employment by Employee. Employee may terminate his or her employment with the Company for any reason whatsoever upon 14 days' written notice to the Company. Employee will be paid his or her regular salary up to the date of termination but shall not receive any severance compensation.
11. Death Benefit. Should Employee die during the term of employment, the Company shall pay to Employee's estate any compensation due Employee through the end of the month in which the death occurred.
12. Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Oklahoma, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
13. Jurisdiction; venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the court of the Northern District of Oklahoma).
14. Limited Effect of Waiver by Company. Should the Company waive breach of any provision of this Agreement by Employee, that waiver will not operate or be construed as a waiver of any further breach by Employee.
15. Severability. If, for any reason, any provision of this Agreement is held invalid, all other provisions of this Agreement shall remain in effect.
16. Successors and Assigns. The Company's rights and obligations under this Agreement will inure to the benefit and be binding upon the Company's successors and assigns.
17. Entire Agreement. This Agreement along with the Confidential Information and Invention Assignment Agreement constitutes the entire agreement between the Company and Employee relating to the subject matter hereof. The Employment Agreement between the Company and Employee dated January 1, 2010 is hereby amended and restated in its entirety as set forth herein.
18. Amendment. This Agreement may be amended at any time by mutual consent of the parties hereto, with any such amendment to be invalid unless in writing and signed by the Company and Employee.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one document. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature page follows]
| 3 |
The parties have executed this Agreement as of the date first written above.
| COMPANY | |||
| By: | /s/ Kenneth L. Agee | ||
| Name: | Kenneth L. Agee | ||
| Title: | President | ||
| EMPLOYEE | |||
| By: | /s/ Kenneth L. Agee | ||
| Name: | Kenneth L. Agee | ||
[Signature Page to First Amended and Restated Employment Agreement]
| 4 |
EXHIBIT 6.3
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This First Amended and Restated Employment Agreement (the “Agreement”) is made and entered into effective as of April 29, 2014, by and between Emerging Fuels Technology, Inc. (the “Company”), an Oklahoma corporation, and Mark A. Agee (“Employee"), an individual.
WHEREAS, the Company and Employee entered into that certain Employment Agreement (the “Employment Agreement”) dated as of October 1, 2013;
WHEREAS, the Company and Employee desire to amend and restate the Employment Agreement to continue Employee’s employment with the Company on the terms and conditions set forth herein and the Company has deemed it to be in its best interest to enter into this Agreement with Employee.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the Company and Employee hereby agree as follows:
1. Term of Employment. Employee’s employment with the Company will continue until such employment is terminated either by the Company or Employee pursuant to the terms and conditions of this Agreement.
2. Salary and Benefits. The Company shall pay Employee a salary of $200,000 per year, payable in accordance with the Company’s payroll policies and procedures. You will be eligible to participate, to the extent you are eligible, in any group medical and hospitalization, profit sharing, retirement, life insurance or other employee benefit plans which the Company may from time to time offer to its employees. All group insurance provided to Employee will be in such form and provide such coverage as is provided to other employees of the Company.
3. Bonus. You will be eligible to participate in the Company’s bonus program for executive management members. Any bonus you receive will be commensurate with your position and will be subject to the Company’s policies and procedures, the Company’s overall financial and operational performance, and evaluation of your individual performance.
4. Duties and Position. The Company hires Employee in the capacity of Vice President – Business Development. Employee’s duties may be modified from time to time at the Company's sole discretion.
5. Employee to Devote Full Time to Company. Employee will devote his or her full time, attention, and energies to the business of the Company, and, during his or her employment with the Company, will not engage in any other business activity, regardless of whether such activity is pursued for profit, gain, or other pecuniary advantage. Employee is not prohibited from making personal investments in any other businesses provided those investments do not require active involvement in the operation of said companies or create a conflict with the Company.
6. Confidential Information and Invention Assignment Agreement. As a condition of employment, Employee must sign the Company’s Confidential Information and Invention Assignment Agreement.
7. Reimbursement of Expenses. Employee may incur reasonable expenses for furthering the Company's business, including expenses for entertainment, travel, and similar items. Subject to Company’s reimbursement policies and procedures, the Company shall reimburse Employee for all reasonable business expenses after Employee presents an itemized account of such expenditures.
8. Vacation. Employee shall be entitled to a yearly vacation of 3 weeks at full pay in accordance with the Company’s policies in effect from time to time.
| 1 |
9. Termination of Employment by the Company. The Company may terminate Employee’s employment with the Company for any reason whatsoever, with or without cause, upon 30 days' written notice to Employee. If the Company requests, Employee will continue to perform his or her duties and will be paid Employee’s regular salary up to the date of termination. On the date of termination, the Company will pay to Employee (i) a severance amount equal to 3 times Employee’s regular monthly salary and (ii) any compensation that Employee has earned as of the date of termination but not yet received. To the extent Employee is eligible to receive COBRA insurance and elects to receive such insurance, the Company will reimburse Employee for premiums associated with such insurance for a period of 3 months following the date of termination. In addition, if the Company’s board of directors, in their sole discretion, awards bonuses for the year in which Employee is terminated, the Company will pay to Employee his or her pro rata share of any such bonus. Such payment to be made within 30 days after the Company’s board of directors awards any such bonuses.
In the event of a Change of Control (as defined below) of the Company and (i) during the three-month period immediately preceding any Change of Control or the one-year period immediately following any Change of Control, the Company terminates Employee’s employment for any reason other than Employee’s death, Disability (as defined below), retirement or Just Cause (as defined below) or (ii) Employee terminates employment for Good Reason (as defined below), then the Company or its successor shall pay Employee his or her regular salary in effect at the time of the notice of termination through the date of termination. On the date of termination, the Company will pay to Employee (i) a severance amount equal to 18 times Employee’s regular monthly salary and (ii) any compensation that Employee has earned as of the date of termination but not yet received. To the extent Employee is eligible to receive COBRA insurance and elects to receive such insurance, the Company will reimburse Employee for premiums associated with such insurance for a period of 18 months following the date of termination. In addition, if the Company’s board of directors, in their sole discretion, awards bonuses for the year in which Employee is terminated, the Company will pay to Employee his or her pro rata share of any such bonus. Such payment to be made within 30 days after the Company’s board of directors awards any such bonuses.
The following definitions shall apply regarding this provision:
“Change of Control” will mean any of the following: (1) a majority of the common stock of the Company ceases to be owned by Ken Agee, Kym Arcuri and Rafael Espinoza; (2) the individuals who, as of the effective date of this Agreement, constitute the Board of Directors of the Company (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the effective date of this Agreement whose election is approved by a vote of 100% of the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board; (3) Approval by the shareholders of the Company of a reorganization, merger or consolidation, in which 50% or more of the combined common stock voting power of the Company, then outstanding, is changed; (4) Approval by the shareholders of the Company of the liquidation or dissolution of the Company or the sale or other disposition of all or substantially all of the assets of the Company occurs; or (5) Completion of a public offering in which 40% or more of the common stock of the Company is sold in the offering.
“Disability” will mean any one or more of the following (1) Employee has been declared legally incompetent by a final court decree (the date of such decree being deemed to be the date on which the disability occurred); (2) Employee receives disability insurance benefits from any disability income insurance policy maintained by the Company for a period of three consecutive months; or (3) Employee has been found to be disabled pursuant to a disability determination, meaning a finding that Employee because of a medically determinable disease, injury, or other mental or physical disability, is unable to perform substantially all of their regular duties to the Company and that such disability is determined or reasonably expected to last at least six months. The Disability determination shall be based upon the written opinion of the physician regularly attending Employee whose disability is in question. The date of any written opinion conclusively finding Employee to be disabled is the date on which the Disability will be deemed to have occurred.
“Just Cause” will mean any one or more of the following: (1) Employee’s material breach of his obligations, duties and responsibilities under any term or provision of this Agreement which remains uncured for a period of five days after written notice by the Company to Employee; (2) Employee’s failure to adhere to the reasonable standards of performance prescribed by the Company; (3) Employee’s act of insubordination to the Company’s Board of Directors; (4) Employee’s gross negligence or willful misconduct in the performance of his duties under this Agreement; (5) Employee’s dishonesty, fraud, misappropriation or embezzlement in the course of, related to or connected with the business of the Company; (6) Employee’s conviction of a felony; or (7) Employee’s failure (after written notice to Employee of such failure and Employee not correcting such failure within five days of such notice) to devote his time, attention and best efforts to the business of the Company as provided in this Agreement.
| 2 |
“Good Reason” shall mean: (1) the assignment to Employee of any duties materially inconsistent in any respect with Employee’s then current position (including status, offices, titles and reporting requirements), authority, duties or responsibilities, or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Employee; (2) any material failure by the Company to comply with any of the provisions of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Employee; (3) the Company’s requirement for Employee to be based at any office outside the Tulsa, Oklahoma or Denver, Colorado metropolitan areas; or (4) any purported termination by the Company of Employee’s employment otherwise than as expressly permitted by this Agreement.
10. Termination of Employment by Employee. Employee may terminate his or her employment with the Company for any reason whatsoever upon 14 days' written notice to the Company. Employee will be paid his or her regular salary up to the date of termination but shall not receive any severance compensation.
11. Death Benefit. Should Employee die during the term of employment, the Company shall pay to Employee's estate any compensation due Employee through the end of the month in which the death occurred.
12. Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Oklahoma, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
13. Jurisdiction; venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the court of the Northern District of Oklahoma).
14. Limited Effect of Waiver by Company. Should the Company waive breach of any provision of this Agreement by Employee, that waiver will not operate or be construed as a waiver of any further breach by Employee.
15. Severability. If, for any reason, any provision of this Agreement is held invalid, all other provisions of this Agreement shall remain in effect.
16. Successors and Assigns. The Company's rights and obligations under this Agreement will inure to the benefit and be binding upon the Company's successors and assigns.
17. Entire Agreement. This Agreement along with the Confidential Information and Invention Assignment Agreement constitutes the entire agreement between the Company and Employee relating to the subject matter hereof. The Employment Agreement between the Company and Employee dated October 1, 2013 is hereby amended and restated in its entirety as set forth herein.
18. Amendment. This Agreement may be amended at any time by mutual consent of the parties hereto, with any such amendment to be invalid unless in writing and signed by the Company and Employee.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one document. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
20. Additional Terms and Conditions. The terms and conditions set forth on Exhibit A are hereby incorporated into this Agreement.
[Signature page follows]
| 3 |
The parties have executed this Agreement as of the date first written above.
| COMPANY | |||
| By: | /s/ Kenneth L. Agee | ||
| Name: | Kenneth L. Agee | ||
| Title: | President | ||
| EMPLOYEE | |||
| By: | /s/ Mark A. Agee | ||
| Name: | Mark A. Agee | ||
[Signature Page to First Amended and Restated Employment Agreement]
| 4 |
Exhibit A
to First Amended and Restated
Employment Agreement
1. Increase in Salary. The Company will increase Employee’s salary to $250,000 per year when the Company receives $10 million of non-dilutive and non-refundable deposits for licensing fees.
2. Additional Bonus. The Company will pay to Employee a bonus of 5% of non-dilutive and non-refundable deposits paid by Airbus or any Airbus subsidiary (subject to restrictions in Employee’s stock option agreement).
3. Existing Business Activities. Employee’s existing cold storage and real estate business activities are not restricted unless they conflict in Employee’s ability to execute the duties of Employee’s position with the Company.
| 5 |
Addendum to
First Amended and Restated Employment Agreement
This Addendum to First Amended and Restated Employment Agreement (the “Addendum”), between Emerging Fuels Technology, Inc. (“EFT”) and Mark A. Agee (“Agee”), is made on October 14, 2014.
BACKGROUND
Agee is employed by EFT as its Vice President – Business Development. On April 29, 2014, EFT and Agee entered into that certain First Amended and Restated Employment Agreement (the “Employment Agreement”). Because of EFT’s financial situation, EFT may need to terminate Agee’s employment but on terms and conditions different than those set forth in the Employment Agreement. The parties wish to agree on the terms and conditions upon which Agee may be terminated from EFT.
AGREEMENT
The parties, therefore, agree as follows:
1. Notice of Termination / Transition Period. Notwithstanding anything to the contrary contained in the Employment Agreement, subject to Section 2 hereof, if EFT provides a 6 month written notice of termination to Agee on or before November 1, 2014 (the “Termination Notice”), then:
(a) Agee will continue to work for and be employed by EFT for a period of 6 months following the date of the Termination Notice (the “Transition Period”);
(b) Agee will continue to receive his current salary and benefits from EFT for the Transition Period;
(c) Upon completion of the Transition Period, Agee will not be entitled to receive any severance benefits under the Employment Agreement; and
(d) If any vacation is earned and unpaid or if expenses have been incurred but not reimbursed upon completion of the Transition Period, then those unpaid amounts will be paid in a final disbursement in accordance with the terms of the Employment Agreement.
2. Substantial Investment Events. If EFT has provided the Termination Notice to Agee and if any of the following events occur on or before completion of the Transition Period (a “Substantial Investment Event”):
(a) EFT receives at least $5 million from Airbus (or any Airbus associated entity) through an equity or licensing transaction;
(b) EFT becomes a publicly traded entity either through an initial public offering, a reverse merger or otherwise;
(c) The Claeris – EFT joint venture closes the initial funding transaction which enables the Claeris – EFT joint venture to fund at least a $1.5 million budget for EFT’s lab work for samples and off-takes and EFT’s management fees;
(d) EFT raises at least $5 million in equity through directed investment or as a result of funds raised by EFT’s investment banker;
| 6 |
(e) EFT raises at least $3 million through CAMs, GE or Emerging Infrastructure Capital Partners; or
(f) Black & Veatch either (i) invests at least $2 million in equity in EFT, (ii) provides $2 million in free engineering services or (iii) enters into a written agreement with EFT that binds both parties together towards the production and launch of a GTL plant or the flare buster project(s) world-wide. Such written agreement shall also include evidence that Black & Veatch intends to provide the necessary guarantee, e.g. wrap., then (i) the Termination Notice and this Addendum will automatically be null and void and of no further force or effect and (ii) Agee will continue to be employed by EFT under the terms and conditions of the Employment Agreement.
3. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Oklahoma, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
4. Jurisdiction; Venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the courts of the Northern District of Oklahoma).
5. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature page follows]
| 7 |
The parties are signing this Addendum to First Amended and Restated Employment Agreement as of the date stated in the introductory clause.
|
Emerging Fuels Technology, Inc. | |
| By: /s/ Kenneth L. Agee | |
| Name: Kenneth L. Agee | |
| Title: President | |
| Mark A. Agee | |
| By: /s/ Mark A. Agee | |
| Name: Mark A. Agee |
[Signature Page to Addendum to First Amended and Restated Employment Agreement]
| 8 |
EXHIBIT 6.4
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This First Amended and Restated Employment Agreement (the “Agreement”) is made and entered into effective as of April 29, 2014, by and between Emerging Fuels Technology, Inc. (the “Company”), an Oklahoma corporation, and Ed Holcomb (“Employee"), an individual.
WHEREAS, the Company and Employee entered into that certain Employment Agreement (the “Employment Agreement”) dated as of January 3, 2011;
WHEREAS, the Company and Employee desire to amend and restate the Employment Agreement to continue Employee’s employment with the Company on the terms and conditions set forth herein and the Company has deemed it to be in its best interest to enter into this Agreement with Employee.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the Company and Employee hereby agree as follows:
1. Term of Employment. Employee’s employment with the Company will continue until such employment is terminated either by the Company or Employee pursuant to the terms and conditions of this Agreement.
2. Salary and Benefits. The Company shall pay Employee a salary of $160,000 per year, payable in accordance with the Company’s payroll policies and procedures. You will be eligible to participate, to the extent you are eligible, in any group medical and hospitalization, profit sharing, retirement, life insurance or other employee benefit plans which the Company may from time to time offer to its employees. All group insurance provided to Employee will be in such form and provide such coverage as is provided to other employees of the Company.
3. Bonus. You will be eligible to participate in the Company’s bonus program for executive management members. Any bonus you receive will be commensurate with your position and will be subject to the Company’s policies and procedures, the Company’s overall financial and operational performance, and evaluation of your individual performance.
4. Duties and Position. The Company hires Employee in the capacity of Chief Financial Officer. Employee’s duties may be modified from time to time at the Company's sole discretion.
5. Employee to Devote Full Time to Company. Employee will devote his or her full time, attention, and energies to the business of the Company, and, during his or her employment with the Company, will not engage in any other business activity, regardless of whether such activity is pursued for profit, gain, or other pecuniary advantage. Employee is not prohibited from making personal investments in any other businesses provided those investments do not require active involvement in the operation of said companies or create a conflict with the Company.
6. Confidential Information and Invention Assignment Agreement. As a condition of employment, Employee must sign the Company’s Confidential Information and Invention Assignment Agreement.
7. Reimbursement of Expenses. Employee may incur reasonable expenses for furthering the Company's business, including expenses for entertainment, travel, and similar items. Subject to Company’s reimbursement policies and procedures, the Company shall reimburse Employee for all reasonable business expenses after Employee presents an itemized account of such expenditures.
8. Vacation. Employee shall be entitled to a yearly vacation of 4 weeks at full pay in accordance with the Company’s policies in effect from time to time.
| 1 |
9. Termination of Employment by the Company. The Company may terminate Employee’s employment with the Company for any reason whatsoever, with or without cause, upon 30 days' written notice to Employee. If the Company requests, Employee will continue to perform his or her duties and will be paid Employee’s regular salary up to the date of termination. On the date of termination, the Company will pay to Employee (i) a severance amount equal to 3 times Employee’s regular monthly salary and (ii) any compensation that Employee has earned as of the date of termination but not yet received. To the extent Employee is eligible to receive COBRA insurance and elects to receive such insurance, the Company will reimburse Employee for premiums associated with such insurance for a period of 3 months following the date of termination. In addition, if the Company’s board of directors, in their sole discretion, awards bonuses for the year in which Employee is terminated, the Company will pay to Employee his or her pro rata share of any such bonus. Such payment to be made within 30 days after the Company’s board of directors awards any such bonuses.
In the event of a Change of Control (as defined below) of the Company and (i) during the three-month period immediately preceding any Change of Control or the one-year period immediately following any Change of Control, the Company terminates Employee’s employment for any reason other than Employee’s death, Disability (as defined below), retirement or Just Cause (as defined below) or (ii) Employee terminates employment for Good Reason (as defined below), then the Company or its successor shall pay Employee his or her regular salary in effect at the time of the notice of termination through the date of termination. On the date of termination, the Company will pay to Employee (i) a severance amount equal to 18 times Employee’s regular monthly salary and (ii) any compensation that Employee has earned as of the date of termination but not yet received. To the extent Employee is eligible to receive COBRA insurance and elects to receive such insurance, the Company will reimburse Employee for premiums associated with such insurance for a period of 18 months following the date of termination. In addition, if the Company’s board of directors, in their sole discretion, awards bonuses for the year in which Employee is terminated, the Company will pay to Employee his or her pro rata share of any such bonus. Such payment to be made within 30 days after the Company’s board of directors awards any such bonuses.
The following definitions shall apply regarding this provision:
“Change of Control” will mean any of the following: (1) a majority of the common stock of the Company ceases to be owned by Ken Agee, Kym Arcuri and Rafael Espinoza; (2) the individuals who, as of the effective date of this Agreement, constitute the Board of Directors of the Company (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the effective date of this Agreement whose election is approved by a vote of 100% of the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board; (3) Approval by the shareholders of the Company of a reorganization, merger or consolidation, in which 50% or more of the combined common stock voting power of the Company, then outstanding, is changed; (4) Approval by the shareholders of the Company of the liquidation or dissolution of the Company or the sale or other disposition of all or substantially all of the assets of the Company occurs; or (5) Completion of a public offering in which 40% or more of the common stock of the Company is sold in the offering.
“Disability” will mean any one or more of the following (1) Employee has been declared legally incompetent by a final court decree (the date of such decree being deemed to be the date on which the disability occurred); (2) Employee receives disability insurance benefits from any disability income insurance policy maintained by the Company for a period of three consecutive months; or (3) Employee has been found to be disabled pursuant to a disability determination, meaning a finding that Employee because of a medically determinable disease, injury, or other mental or physical disability, is unable to perform substantially all of their regular duties to the Company and that such disability is determined or reasonably expected to last at least six months. The Disability determination shall be based upon the written opinion of the physician regularly attending Employee whose disability is in question. The date of any written opinion conclusively finding Employee to be disabled is the date on which the Disability will be deemed to have occurred.
“Just Cause” will mean any one or more of the following: (1) Employee’s material breach of his obligations, duties and responsibilities under any term or provision of this Agreement which remains uncured for a period of five days after written notice by the Company to Employee; (2) Employee’s failure to adhere to the reasonable standards of performance prescribed by the Company; (3) Employee’s act of insubordination to the Company’s Board of Directors; (4) Employee’s gross negligence or willful misconduct in the performance of his duties under this Agreement; (5) Employee’s dishonesty, fraud, misappropriation or embezzlement in the course of, related to or connected with the business of the Company; (6) Employee’s conviction of a felony; or (7) Employee’s failure (after written notice to Employee of such failure and Employee not correcting such failure within five days of such notice) to devote his time, attention and best efforts to the business of the Company as provided in this Agreement.
| 2 |
“Good Reason” shall mean: (1) the assignment to Employee of any duties materially inconsistent in any respect with Employee’s then current position (including status, offices, titles and reporting requirements), authority, duties or responsibilities, or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Employee; (2) any material failure by the Company to comply with any of the provisions of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Employee; (3) the Company’s requirement for Employee to be based at any office outside the Tulsa, Oklahoma or Denver, Colorado metropolitan areas; or (4) any purported termination by the Company of Employee’s employment otherwise than as expressly permitted by this Agreement.
10. Termination of Employment by Employee. Employee may terminate his or her employment with the Company for any reason whatsoever upon 14 days' written notice to the Company. Employee will be paid his or her regular salary up to the date of termination but shall not receive any severance compensation.
11. Death Benefit. Should Employee die during the term of employment, the Company shall pay to Employee's estate any compensation due Employee through the end of the month in which the death occurred.
12. Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Oklahoma, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
13. Jurisdiction; venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in Tulsa County in the State of Oklahoma (or in the event of exclusive federal jurisdiction, the court of the Northern District of Oklahoma).
14. Limited Effect of Waiver by Company. Should the Company waive breach of any provision of this Agreement by Employee, that waiver will not operate or be construed as a waiver of any further breach by Employee.
15. Severability. If, for any reason, any provision of this Agreement is held invalid, all other provisions of this Agreement shall remain in effect.
16. Successors and Assigns. The Company's rights and obligations under this Agreement will inure to the benefit and be binding upon the Company's successors and assigns.
17. Entire Agreement. This Agreement along with the Confidential Information and Invention Assignment Agreement constitutes the entire agreement between the Company and Employee relating to the subject matter hereof. The Employment Agreement between the Company and Employee dated January 3, 2011 is hereby amended and restated in its entirety as set forth herein.
18. Amendment. This Agreement may be amended at any time by mutual consent of the parties hereto, with any such amendment to be invalid unless in writing and signed by the Company and Employee.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one document. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
20. Additional Terms and Conditions. The terms and conditions set forth on Exhibit A are hereby incorporated into this Agreement.
[Signature page follows]
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The parties have executed this Agreement as of the date first written above.
| COMPANY | |||
| By: | /s/ Kenneth L. Agee | ||
| Name: | Kenneth L. Agee | ||
| Title: | President | ||
| EMPLOYEE | |||
| By: | /s/ Ed Holcomb | ||
| Name: | Ed Holcomb | ||
[Signature Page to First Amended and Restated Employment Agreement]
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Exhibit A
to First Amended and Restated
Employment Agreement
1. Reimbursement of Commuting Expenses. The Company anticipates that Employee will continue to maintain Employee’s primary residence in Texas and will therefore have travel and temporary residence expenses. The Company will pay $400 per pay period to Employee for temporary residence and travel expenses.
2. Relocation. The Company will agree to assist with the future cost of relocation of Employee’s household. This assistance will at a minimum include the assistance of a moving company to transport property to a property in the vicinity of the Company’s corporate office. Any request for relocation assistance must be in writing to Employee’s supervisor and the timing must be mutually agreed to as in the best interest of Employee and the Company.
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EXHIBIT 6.5
FIRST AMENDMENT TO
EMERGING FUELS TECHNOLOGY, INC.
2013 EQUITY AWARD PLAN
This First Amendment to Emerging Fuels Technology, Inc. 2013 Equity Award Plan (the “First Amendment”) is effective as of May 9, 2017.
The Plan is hereby amended as follows:
1. Definitions. The following capitalized term is hereby added to Section 2 of the Plan:
“Special Termination” means a termination of the Participant’s Service due to death or Disability.
2. Maximum Amount Available for Awards. The maximum number of shares of Stock that are available for Awards is hereby increased from 353 (three hundred fifty-three) shares to 703 (seven hundred three) shares. Therefore, the first sentence of Section 4(a) of the Plan is hereby amended to read as follows:
“(a) Number. Subject in all cases to the provisions of this Section 4, the maximum number of shares of Stock that are available for Awards shall be 703 (seven hundred three) shares.”
All capitalized terms used but not defined herein shall have the meaning ascribed to such term in the Plan.
This First Amendment shall be construed in connection with and as part of the Plan.
* * * * * *
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EMERGING FUELS TECHNOLOGY, INC.
2013 EQUITY AWARD PLAN
SECTION 1. PURPOSE AND EFFECTIVE DATE
(a) Purpose. The Emerging Fuels Technology, Inc. 2013 Equity Award Plan (the “Plan”) is intended to promote the interests of the Company and its shareholders by (i) promoting the growth and success of Emerging Fuels Technology, Inc (the “Company”) by linking a significant portion of Participant compensation to the increase in the value of the Company’s Stock, (ii) attracting and retaining non-employee directors, executive personnel and other key employees by offering performance related incentives to achieve a competitive incentive compensation program, (iii) rewarding innovation and outstanding performance as important contributing factors to the Company’s growth and progress thereby aligning the interests of the executive officers, employees, Directors and Consultants with those of the Company’s shareholders by reinforcing the relationship between Participant rewards and shareholder gains obtained through the achievement by Plan Participants of short-term objectives and long-term goals, and (iv) encouraging executive officers, employees, Directors and Consultants to obtain and maintain an equity interest in the Company.
(b) Effective Date. The Plan will become effective, and Awards may be granted under the Plan, on and after the Effective Date; provided that any Award granted prior to the date the Plan is approved by the Company’s shareholders shall be contingent on such approval.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined in the Plan shall have the following meanings:
“10% Stockholder” means a Participant who, as of the date that an Incentive Stock Option is granted to such individual, owns more than ten percent (10%) of the total combined voting power of all classes of capital stock then issued by the Company or a Subsidiary.
“Act” shall mean the Securities Exchange Act of 1934, as amended.
“Affiliate” and “Associate” have the respective meanings ascribed to such terms in Rule 12b-2 under the Act. Notwithstanding the foregoing, for purposes of determining those individuals to whom an Option or Stock Appreciation Right may be granted, the term “Affiliate” means any entity that, directly or through one or more intermediaries, is controlled by, controls, or is under common control with the Company within the meaning of Code Sections 414(b) or (c); provided that, in applying such provisions, the phrase “at least 20 percent” shall be used in place of “at least 80 percent” each place it appears therein.
“Award” means a grant of Options, Stock Appreciation Rights, Performance Shares, Performance Units, Restricted Stock, Restricted Stock Units, Deferred Stock Rights, Dividend Equivalent Units, or any other type of award permitted under the Plan.
“Board” means the Board of Directors of the Company.
“Cause” means (i) the willful failure of a Participant to perform substantially his or her duties, (ii) a Participant’s willful or serious misconduct that has caused, or could reasonably be expected to result in, material injury to the business or reputation of an Employer, (iii) a Participant’s conviction of, or entering a plea of guilty or nolo contendere to, a crime constituting a felony, (iv) the breach by a Participant of any written covenant or agreement with an Employer, any material written policy of any Employer or any Employer’s “code of conduct”, or (v) the Participant’s failure to cooperate with an Employer in any internal investigation or administrative, regulatory or judicial proceeding. In addition, the Participant’s Service shall be deemed to have terminated for Cause if, after the Participant’s Service has terminated (for a reason other than Cause), facts and circumstances are discovered that would have justified a termination for Cause.
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“Change of Control” means the first occurrence of any of the following:
(i) a transaction or series of transactions (other than an offering of Stock to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Act) (other than the Company, any of its Subsidiaries, an employee benefit plan maintained by the Company or any of its Subsidiaries or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Act) of securities of the Company possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or
(ii) during any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described herein as a Change of Control whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(iii) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions, in each case other than a transaction:
(A) that results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and
(B) after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this section as beneficially owning 50% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(iv) the Company’s shareholders approve a plan of complete liquidation or dissolution of the Company, or such a plan is commenced; or
(v) any other event not described in clauses (i) through (iv) above, that the Board, in its discretion, determines to be a Change in Control.
Notwithstanding the foregoing, with respect to an Award that is considered deferred compensation subject to Code Section 409A, the definition of “Change of Control” shall be amended and interpreted in a manner that allows the definition to satisfy the requirements of a change of control under Code Section 409A solely for purposes of determining the timing of payment of such Award.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
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“Committee” means the Compensation Committee of the Board (or such other committee of the Board that either (i) has the same or similar authority as the Compensation Committee or (ii) has been appointed by the Board to administer the Plan).
“Consultant” means a Person or entity rendering services to the Company or an Affiliate other than as an employee of any such entity or a Director.
“Deferred Stock Right” means the right to receive Stock or Restricted Stock at some future time.
“Director” means a member of the Board.
“Disability” means, except as otherwise determined by the Committee and set forth in an Award Agreement: (i) with respect to an Incentive Stock Option, the meaning given in Code Section 22(e)(3), and (ii) with respect to all other Awards, a physical or mental incapacity which qualifies an individual to collect a benefit under a long term disability plan maintained by the Company, or such similar mental or physical condition which the Committee may determine to be a disability, regardless of whether either the individual or the condition is covered by any such long term disability plan. The Committee shall make the determination of Disability and may request such evidence of Disability as it reasonably determines.
“Dividend Equivalent Unit” means the right to receive a payment, in cash or Shares, equal to the cash dividends or other distributions paid with respect to a Share.
“Effective Date” means May 14, 2013, the date on which the Plan was approved by the Board.
“Employee” means any officer or employee employed by any the Company and any Affiliate thereof in a common-law employee-employer relationship.
“Employer” means the Company and any Affiliate thereof.
“Fair Market Value” means the closing sales price (or average of the quoted closing bid and asked prices if there is no closing sales price reported), per Share on a particular date of the Stock. If the Shares are neither listed on a national securities exchange nor traded in an over-the-counter market, the price determined by the Committee, in its discretion, will be used.
“Incentive Stock Option” means an Option that meets the requirements of Section 422 of the Code.
“Non-Employee Director” means a Director who is not an employee of the Company or any Subsidiary.
“Nonqualified Stock Option” means an Option that does not meet the requirements of Section 422 of the Code.
“Option” means the right to purchase Shares at a stated price for a specified period of time.
“Participant” means an Employee, Director or Consultant selected by the Committee to receive an Award under the Plan.
“Performance Awards” means a Performance Share and Performance Unit, and any Award of Restricted Stock, Restricted Stock Units, or Deferred Stock Rights the payment or vesting of which is contingent on the attainment of one or more Performance Goals.
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“Performance Goals” means any goals the Committee establishes that relate to one or more of the following with respect to the Company or any one or more of its Subsidiaries, Affiliates or other business units: net income; income from continuing operations; stockholder return; stock price appreciation; earnings per share (including diluted earnings per share); net operating profit (including after-tax); revenue growth; organic sales growth; return on equity; return on investment; return on invested capital (including after-tax); earnings before interest, taxes, depreciation and amortization; operating income; operating margin; market share; return on sales; asset reduction; cost reduction; return on equity; cash flow (including free cash flow); bookings; and new product releases. As to each Performance Goal, the relevant measurement of performance shall be computed in accordance with generally accepted accounting principles, if applicable; provided that, the Committee may, at the time of establishing the Performance Goal(s), exclude the effects of (i) extraordinary, unusual and/or non-recurring items of gain or loss, (ii) gains or losses on the disposition of a business, (iii) changes in tax regulations or laws, or (iv) the effect of a merger or acquisition. Notwithstanding the foregoing, the calculation of any Performance Goal established for purposes of an Award shall be made without regard to changes in accounting methods used by the Company or in accounting standards that may be required under U.S. Generally Accepted Accounting Principles after a Performance Goal relative to an Award is established and prior to the time the compensation earned by reason of the achievement of the relevant Performance Goal is paid to the Participant. In the case of Awards that the Committee determines will not be considered “performance-based compensation” under Section 162(m) of the Code, the Committee may establish other Performance Goals not listed in the Plan. Where applicable, the Performance Goals may be expressed, without limitation, in terms of attaining a specified level of the particular criterion or the attainment of an increase or decrease (expressed as absolute numbers or a percentage) in the particular criterion or achievement in relation to a peer group or other index. The Performance Goals may include a threshold level of performance below which no payment will be made (or no vesting will occur), levels of performance at which specified payments will be paid (or specified vesting will occur), and a maximum level of performance above which no additional payment will be made (or at which full vesting will occur).
“Performance Period” means the period selected by the Committee during which performance is measured for the purpose of determining the extent to which an Award of Performance Shares, Performance Awards or Performance Units has been earned.
“Performance Shares” means the right to receive Shares (including Restricted Stock) to the extent Performance Goals are achieved.
“Performance Unit” means the right to receive a payment valued in relation to a unit that has a designated dollar value or the value of which is equal to the Fair Market Value of one or more Shares, to the extent Performance Goals are achieved.
“Person” has the meaning given in Section 3(a)(9) of the Act, as modified and used in Sections 13(d) and 14(d) thereof.
“Restriction Period” means the period of time selected by the Committee during which an Award of Stock, Restricted Stock and/or Restricted Stock Units, as the case may be, is subject to forfeiture and/or restrictions on transfer pursuant to the terms of the Plan
“Restricted Stock” means a Share that is subject to a risk of forfeiture, restrictions on transfer, or both pursuant to the Plan.
“Restricted Stock Unit” means the right to receive a payment equal to the Fair Market Value of one (1) Share.
“Section 16 Participants” means Participants who are subject to the provisions of Section 16 of the Act.
“Service” means the provision of services to the Company or its Affiliates in the capacity of (i) an Employee, (ii) a Director, or (iii) a Consultant.
“Share” means a share of Stock.
“Stock” means the common stock of the Company, par value of $0.01 per share.
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“Stock Appreciation Right” or “SAR” means the right to receive a payment equal to the appreciation of the Fair Market Value of one (1) Share during a specified period of time.
“Subsidiary” means any business entity in which the Company possesses directly or indirectly fifty percent (50%) or more of the total combined voting power.
SECTION 3. POWERS OF THE COMMITTEE
(a) Eligibility. Each Employee, Director or Consultant who, in the opinion of the Committee, has the capacity to contribute to the success of the Company is eligible to be a Participant in the Plan.
(b) Power to Grant and Establish Terms of Awards. The Committee shall have the discretionary authority, subject to the terms of the Plan, to determine which Employees, Directors or Consultants to whom Awards shall be granted, the type or types of Awards to be granted, and the terms and conditions of any and all Awards including, without limitation, the number of shares of Stock subject to an Award, the time or times at which Awards shall be granted, and the terms and conditions of applicable Award Agreements. The Committee may establish different terms and conditions for different types of Awards, for different Participants receiving the same type of Award, and for the same Participant for each type of Award such Participant may receive, whether or not granted at the same or different times.
(c) Administration. The Plan shall be administered by the Committee. The Committee shall have full discretionary authority to administer the Plan, including but not limited to the authority to: (i) interpret the provisions of the Plan, (ii) prescribe, amend and rescind rules and regulations relating to the Plan, (iii) correct any defect, supply any omission, or reconcile any inconsistency in any Award or agreement covering an Award in the manner and to the extent it deems desirable to carry the Plan into effect, and (iv) make all other determinations necessary or advisable for the administration of the Plan. The Committee’s decisions (including any failure to make decisions) shall be binding upon all persons, including the Company, shareholders, Employers, and each Employee, Director, Consultant, Participant or Designated Beneficiary, and shall be given deference in any proceeding with respect thereto.
Notwithstanding the above statement or any other provision of the Plan, once established, the Committee shall have no discretion to increase the amount of compensation payable under an Award that is intended to be performance-based compensation under Section 162(m) of the Code, although the Committee may decrease the amount of compensation a Participant may earn under such an Award. Any action by the Committee to accelerate or otherwise amend an Award for reasons other than retirement, death, Disability or a termination by the Company without Cause, or in connection with a Change of Control, shall include application of a commercially reasonable discount to the compensation otherwise payable to reflect the value of the accelerated payment.
(d) Delegation to Other Committees or Officers. The Committee may delegate to the Company’s Chief Executive Officer and/or to such other officer(s) of the Company, the power and authority to make and/or administer Awards under the Plan with respect to individuals who are below the position of an executive officer of the Company, pursuant to such conditions and limitations as the Committee may establish and only the Committee or the Board may select, and grant Awards to, executive officers or exercise any other discretionary authority under the Plan in respect of Awards granted to such executive officers. Unless the Committee shall otherwise specify, any delegate shall have the authority and right to exercise (within the scope of such person’s delegated authority) all of the same powers and discretion that would otherwise be available to the Committee pursuant to the terms hereof. The Committee may also appoint agents (who may be officers or employees of the Company) to assist in the administration of the Plan and may grant authority to such persons to execute agreements, including Award Agreements, or other documents on its behalf. All expenses incurred in the administration of the Plan, including, without limitation, for the engagement of any counsel, consultant or agent, shall be paid by the Company.
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(e) Indemnification. The Company will indemnify and hold harmless each member of the Board and the Committee, and each officer or member of any other committee to whom a delegation under Section 3(b) has been made, as to any acts or omissions with respect to the Plan or any Award to the maximum extent that the law and the Company’s By-Laws permit.
(f) Participants Based Outside the United States. To conform with the provisions of local laws and regulations, or with local compensation practices and policies, in foreign countries in which the Company or any of its Subsidiaries or Affiliates operate, the Committee may provide for such special terms as it may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Moreover, the Committee may approve such supplements to, or amendments, restatements or alternative versions of, the Plan as it determines necessary or appropriate for such purposes. Any such amendment, restatement or alternative versions that the Committee approves for purposes of using the Plan in a foreign country will not affect the terms of the Plan for any other country.
In addition, if an Award is held by a Participant who is employed or residing in a foreign country and the amount payable or Shares issuable under such Award would be taxable to the Participant under Section 457A of the Code in the year such Award is no longer subject to a substantial risk of forfeiture, then the amount payable or Shares issuable under such Award shall be paid or issued to the Participant as soon as practicable after such substantial risk of forfeiture lapses (or, for Awards that are not considered nonqualified deferred compensation subject to Section 409A of the Code, no later than the end of the short-term deferral period permitted by Section 457A of the Code) notwithstanding anything in the Plan or the Award Agreement to contrary.
SECTION 4. MAXIMUM AMOUNT AVAILABLE FOR AWARDS
(a) Number. Subject in all cases to the provisions of this Section 4, the maximum number of shares of Stock that are available for Awards shall be 353 (three hundred fifty-three) shares. Such maximum number of shares shall be subject to adjustment in Section 4(d). Notwithstanding the provisions of Section 4(b) of the Plan, the maximum number of shares of Stock that may be issued in respect of Incentive Stock Options shall not exceed 59 (fifty-nine) shares. Shares of Stock may be made available from Stock held in treasury or authorized but unissued shares of the Company not reserved for any other purpose.
(b) Canceled, Terminated or Forfeited Awards, Etc. Any share of Stock subject to an Award which for any reason expires without having been exercised, is canceled or terminated or otherwise is settled without the issuance of any Stock shall again be available for grant under the Plan; provided that, for purposes of Section 4(a) upon the Net Exercise of any Options or the exercise of any SAR, the gross number of shares as to which such Option or SAR is being exercised, and not just the net number of shares delivered upon such exercise, shall be treated as issued pursuant to the Plan.
(c) Individual Award Limitations. No Participant may be granted under the Plan in any calendar year Awards of Restricted Stock, Restricted Stock Units, Performance Shares and Performance Units covering an aggregate of more than 160 (one hundred sixty) shares of Stock, subject to adjustment in Section 4(d) or 10(b). No Participant may be granted Options and SARs on more than 160 (one hundred sixty) shares of Stock under the Plan in any calendar year, subject to adjustment in Section 4(d) or 10(b). The maximum aggregate cash payment with respect to cash-based Awards (including Performance Awards) granted in any one fiscal year that may be made to any Participant shall be $1,000,000 (one million dollars).
(d) Adjustment in Capitalization. In the event that the Committee shall determine that any stock dividend, stock split, share combination, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares, warrants or rights offering to purchase Stock at a price substantially below Fair Market Value, or other similar corporate event affects the Stock such that an adjustment is required in order to preserve, or to prevent the enlargement of, the benefits or potential benefits intended to be made available under this Plan, then an adjustment shall be made in the number and class of shares of stock available for Awards under Section 4(a) and the limitations in Section 4(c) and the Committee shall substitute for or add to each share of Stock that may become subject to an Award the number and kind of shares of stock or other securities into which each outstanding share of Stock was changed, for which each such share of Stock was exchanged, or to which each such share of Stock, as the case may be.
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SECTION 5. PERFORMANCE AWARDS, PERFORMANCE SHARES AND PERFORMANCE UNITS
(a) Generally. The Committee shall have the authority to determine the Participants who shall receive Performance Awards, Performance Shares and Performance Units, the number of Performance Shares and the number and value of Performance Units each Participant receives for each or any Performance Period, and the Performance Goals applicable in respect of such Performance Awards, Performance Shares and Performance Units for each Performance Period. The Committee shall determine the duration of each Performance Period (which may differ from each other), and there may be more than one Performance Period in existence at any one time as to any Participant or all or any class of Participants. Each grant of Performance Shares and Performance Units shall be evidenced by an Award Agreement that shall specify the number of Performance Shares and the number and value of Performance Units awarded to the Participant, the Performance Goals applicable thereto, and such other terms and conditions not inconsistent with the Plan as the Committee shall determine. No shares of Stock will be issued at the time an Award of Performance Shares is made, and the Company shall not be required to set aside a fund for the payment of Performance Shares or Performance Units. Subject to the terms of the Plan, Performance Awards may be granted to Participants in such amounts, subject to such Performance Goals, and upon such terms, and at any time and from time to time, as shall be determined by the Committee.
(b) Earned Performance Awards, Performance Shares and Performance Units. Performance Awards, Performance Shares and Performance Units shall become earned, in whole or in part, based upon the attainment of specified Performance Goals or the occurrence of any event or events, including a Change in Control, as the Committee shall determine, either at or after the grant date. In addition to the achievement of the specified Performance Goals, the Committee may, at the grant date, condition payment of Performance Awards, Performance Shares and Performance Units on the Participant completing a minimum period of Service following the grant date or on such other conditions as the Committee shall specify. The Committee may provide, at the time of any grant of Performance Shares or Performance Units, that if performance relative to the Performance Goals exceeds targeted levels, the number of shares issuable in respect of each Performance Share or the value payable in respect of each Performance Unit shall be adjusted by such multiple (not in excess of 20%) as the Committee shall specify.
(c) Performance Criteria. At the discretion of the Committee, Performance Criteria may be based on the total return to the Company’s shareholders, inclusive of dividends paid, during the applicable Performance Period (determined either in absolute terms or relative to the performance of one or more similarly situated companies or a published index covering the performance of a number of companies), or upon the relative or comparative attainment of one or more of the following criteria, whether in absolute terms or relative to the performance of one or more similarly situated companies or a published index covering the performance of a number of companies: stock price, operating earnings or margins, net earnings, return on equity, income, market share, return on investment, return on capital employed, level of expenses, revenue cash flow and, in the case of persons who are not Executive Officers, such other criteria as may be determined by the Committee. Performance Criteria may be established on a Company-wide basis or with respect to one or more business units or divisions or Subsidiaries. When establishing Performance Criteria for a Performance Period, the Committee may exclude any or all “extraordinary items” as determined under U.S. generally accepted accounting principles including, without limitation, the charges or costs associated with restructurings of the Company or any Subsidiary, mergers, acquisitions, divestitures, discontinued operations, other unusual or non-recurring items, the cumulative effects of accounting changes or such other objective factors as the Committee deems appropriate. Except in the case of Awards to Executive Officers intended to be “other performance-based compensation” under Section 162(m)(4) of the Code, the Committee may also adjust the Performance Criteria for any Performance Period as it deems equitable in recognition of unusual or non-recurring events affecting the Company, changes in applicable tax laws or accounting principles, or such other factors as the Committee may determine.
(d) Special Rule for Performance Goals. If, at the time of grant, the Committee intends an Award of Performance Awards, Performance Shares or Performance Units to qualify as “other performance-based compensation” within the meaning of Section 162(m)(4) of the Code, the Committee must establish the Performance Goals for the applicable Performance Period no later than the end of the third month after the Performance Period begins (or by such other date as may be required under Section 162(m) of the Code).
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(e) Certification of Attainment of Performance Goals. As soon as practicable after the end of a Performance Period and prior to any payment in respect of such Performance Period, the Committee shall certify in writing the amount of the Performance Award, the number of Performance Shares, or the number and value of Performance Units, that have been earned on the basis of performance in relation to the established Performance Period.
(f) Payment of Awards. Earned Performance Awards, Performance Shares and the value of earned Performance Units shall be distributed to the Participant or, if the Participant has died, to the Participant’s Designated Beneficiary, as soon as practicable after the expiration of the Performance Period and the Committee’s certification under Section 5(d) above, provided that (i) earned Performance Awards, Performance Shares and the value of earned Performance Units shall not be distributed to a Participant until any other conditions on payment of such Awards established by the Committee have been satisfied, and (ii) any amounts payable in respect of Performance Awards, Performance Shares or Performance Units pursuant to Section 9 of the Plan shall be distributed in accordance with Section 9. The Committee shall determine whether Performance Awards, Performance Shares and the value of earned Performance Units are to be distributed in the form of cash, shares of Stock or in a combination thereof, with the value or number of shares of Stock payable to be determined based on the Fair Market Value of Stock on the date of the Committee’s certification under Section 5(d) above.
(g) Newly Eligible Participants. Notwithstanding anything in this Section 5 to the contrary, the Committee shall be entitled to make such rules, determinations and adjustments as it deems appropriate with respect to any Participant who becomes eligible to receive Performance Awards, Performance Shares or Performance Units after the commencement of a Performance Period.
(h) Termination of Service.
(i) Qualifying Termination of Employment. Unless otherwise determined by the Committee at or after the grant date, or except as provided in an employment or individual severance agreement between a Participant and an Employer, a Participant whose Service terminates by reason of a Qualifying Termination of Employment on or after the first anniversary of the commencement of the relevant Performance Period (or such other period as the Committee shall specify at the time of grant of the Performance Awards, Performance Shares or Performance Units) shall be entitled to a distribution of the same Performance Awards, number of Performance Shares, or the value of Performance Units (without pro-ration) that would have been payable for the Performance Period had his or her Service continued until the end of the applicable Performance Period. Any Performance Awards, Performance Shares or the value of Performance Units becoming payable in accordance with the preceding sentence shall be paid at the same time as the Performance Awards, Performance Shares and the value of Performance Units are paid to other Participants (or at such earlier time as the Committee may permit). Any rights that a Participant or Designated Beneficiary may have in respect of any Performance Awards, Performance Shares or Performance Units outstanding at the date of the Qualifying Termination of Employment that are not available to be earned or that are not earned in accordance with this Section 5(f)(i) shall be forfeited and canceled, effective as of the date of the Participant’s termination of Service.
(ii) Termination for any Other Reason. Unless otherwise determined by the Committee at or after the grant date, or except as provided in an employment or individual severance agreement between a Participant and an Employer, if a Participant’s Service is terminated for any reason other than a Qualifying Termination of Employment during a Performance Period, all of the Participant’s rights to Performance Awards, Performance Shares and Performance Units related to such Performance Period shall be immediately forfeited and canceled as of the date of such termination of Service. Notwithstanding the immediately preceding sentence, a Participant’s rights in respect of unearned Performance Awards, Performance Shares and Performance Units shall in all events be immediately forfeited and canceled as of the date of the Participant’s termination of Service for Cause.
(iii) Termination in Connection with a Change in Control. Notwithstanding anything to the contrary in this Section 5(f), Section 9 of the Plan shall determine the treatment of Performance Awards, Performance Shares and Performance Units upon a Change in Control, including the treatment of such Awards granted to any Participant whose Service is involuntarily terminated by an Employer other than for Cause or whose Service is terminated due to a Special Termination, in either case, on or after the date on which the shareholders of the Company approve the transaction giving rise to the Change in Control, but prior to the consummation thereof.
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SECTION 6. RESTRICTED STOCK AND RESTRICTED STOCK UNITS
(a) Grant. The Committee shall have the authority to grant Restricted Stock and Restricted Stock Units to Participants at such time or times as shall be determined by the Committee. The grant date of any Restricted Stock or Restricted Stock Units under the Plan will be the date on which such Restricted Stock or Restricted Stock Units are awarded by the Committee, or such other date as the Committee shall determine. Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement that shall specify (i) the number of shares of Restricted Stock and the number of Restricted Stock Units granted to each Participant, (ii) the Restriction Period(s) applicable thereto, and (iii) such other terms and conditions not inconsistent with the Plan as the Committee shall determine, including customary representations, warranties and covenants with respect to securities law matters. Awards of Restricted Stock Units shall be evidenced by a bookkeeping entry in the Company’s records (or by such other reasonable method as the Company shall determine from time to time).
(b) Vesting. Restricted Stock and Restricted Stock Units granted to Participants under the Plan shall be subject to a Restriction Period. Except as otherwise determined by the Committee at or after the grant date, and subject to the Participant’s continued employment with his or her Employer on such date, the Restricted Stock shall vest ratably over three (3) years upon each anniversary of the grant date. The Committee may provide that the Restriction Period on Restricted Stock or Restricted Stock Units shall lapse, in whole or in part, upon the achievement of performance criteria (and without regard to the minimum service requirement), which criteria shall be selected from those available to the Committee under Section 5 of the Plan, provided that any Award of Restricted Stock made to any Executive Officer that is intended to qualify as “other performance-based compensation” under Section 162(m) of the Code shall be subject to the same restrictions and limitations applicable to Awards of Performance Shares under Section 5(c) of the Plan and subject to the certification required under Section 5(d) of the Plan. The Restriction Period shall also lapse, in whole or in part, upon the occurrence of any event or events, including a Change in Control, specified in the Plan, or specified by the Committee, in its discretion, either at or after the grant date of the applicable Award.
(c) Dividend Equivalents. The Committee shall determine whether and to what extent dividends payable on Stock will be credited, or paid currently, to a Participant in respect of an Award of Restricted Stock Units. Unless otherwise determined by the Committee at or after the grant date, a Participant holding Restricted Stock Units shall not be entitled to exercise any voting rights and/or any other rights as a shareholder with respect to shares of Stock underlying such Award.
(d) Settlement of Restricted Stock and Restricted Stock Units. At the expiration of the Restriction Period for any Restricted Stock, the Company shall remove the restrictions applicable to the Restricted Stock, and shall, upon request, deliver stock certificates evidencing such Restricted Stock to the Participant or the Participant’s legal representative (or otherwise evidence the issuance of such shares free of any restrictions imposed under the Plan). At the expiration of the Restriction Period for any Restricted Stock Units, for each such Restricted Stock Unit, the Participant shall receive, in the Committee’s discretion, (i) a cash payment equal to the Fair Market Value of one share of Stock as of such payment date, (ii) one share of Stock or (iii) any combination of cash and shares of Stock having an aggregate value equal to the Fair Market Value of one share of Stock.
(e) Restrictions on Transfer. Except as provided herein or in an Award Agreement, shares of Restricted Stock and Restricted Stock Units may not be sold, assigned, transferred, pledged or otherwise encumbered during the Restriction Period. Any such attempt by the Participant to sell, assign, transfer, pledge or encumber shares of Restricted Stock and Restricted Stock Units without complying with the provisions of the Plan shall be void and of no effect.
(f) Termination of Service.
(i) Qualifying Termination of Employment. Unless otherwise determined by the Committee at or after the grant date, or except as provided in an employment or individual severance agreement between a Participant and an Employer, if a Participant’s Service terminates by reason of a Qualifying Termination of Employment during the Restriction Period, a pro rata portion of any Stock related to Restricted Stock or a Restricted Stock Unit held by such Participant shall become nonforfeitable at the date of such termination, based on the number of full calendar months of such Participant’s Service relative to the number of full calendar months in the relevant Restriction Period.
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(ii) Termination for any Other Reason. Unless otherwise determined by the Committee at or after the grant date, or except as provided in an employment or individual severance agreement between a Participant and an Employer, if a Participant’s Service terminates for any reason other than a Qualifying Termination of Employment during the Restriction Period, any Restricted Stock or Restricted Stock Units held by such Participant shall be forfeited and canceled as of the date of such termination of Service. Notwithstanding the immediately preceding sentence, a Participant’s rights in respect of unvested Restricted Stock or Restricted Stock Units shall in all events be immediately forfeited and canceled as of the date of the Participant’s termination of Service for Cause.
(iii) Termination in Connection with a Change in Control. Notwithstanding anything to the contrary in this Section 6(f), Section 9 of the Plan shall determine the treatment of Restricted Stock and Restricted Stock Units upon a Change in Control, including the treatment of such Awards granted to any Participant whose Service is involuntarily terminated by an Employer other than for Cause or whose Service is terminated due to a Special Termination, in either case, on or after the date on which the shareholders of the Company approve the transaction giving rise to the Change in Control, but prior to the consummation thereof.
SECTION 7. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
(a) Grant. The Committee shall have the authority to grant Options, (whether Incentive Stock Options or Non-statutory Stock Options) and Stock Appreciation Rights to Participants at such time or times as shall be determined by the Committee. The grant date of any Option or SAR under the Plan will be the date on which such Option or SAR is awarded by the Committee, or such other future date as the Committee shall determine in its sole discretion. Each Option or SAR awarded under the Plan shall be evidenced by an Award Agreement that shall specify (i) the type of Option Award granted, (ii) the number of Shares subject to the Option, (iii) the date of grant, which may not be prior to the date of the Committee’s approval of the grant, (iv) the exercise price, (v) the duration of the Option or SAR; and (vi) such other terms and conditions not inconsistent with the Plan as the Committee shall determine including customary representations, warranties and covenants with respect to securities law matters. In no case, may an Incentive Stock Option be granted to a Participant that is not an Employee.
(b) Exercise Price. The Committee shall establish the exercise price at the time each Option or SAR is granted, which shall not be less than 100% of the Fair Market Value of the Stock on the grant date. Notwithstanding the foregoing, if an Incentive Stock Option is granted to an Employee who, at the time of grant, owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any Affiliate thereof, the exercise price shall be at least 110% of the Fair Market Value of the Stock on the grant date.
(c) Vesting and Exercisability. Except as otherwise determined by the Committee at or after the grant date, and subject to the Participant’s continued employment with his or her Employer on such date, each Option and SAR awarded to a Participant under the Plan shall become vested and exercisable in three (3) approximately equal installments on each of the first three (3) anniversaries of the grant date. Options and SARs may also become exercisable, in whole or in part, upon the occurrence of any event or events, including a Change in Control, specified in the Plan, or specified by the Committee, in its discretion, either at or after the grant date of the applicable Option or SAR. In its discretion, the Committee may also establish performance conditions with respect to the exercisability of any Option or SAR during a Performance Period selected by the Committee. No Option or SAR shall be exercisable on or after the tenth anniversary of its grant date (the fifth anniversary of the grant date for an Incentive Stock Option is granted to an Employee who, at the time of grant, owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any Affiliate thereof). The Committee may impose such conditions with respect to the exercise of Options or SARs, including without limitation, any relating to the application of federal or state securities laws, as it may deem necessary or advisable.
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(d) Payment of Option Exercise Price. No Stock shall be delivered pursuant to any exercise of an Option until payment in full of the exercise price and any applicable withholding taxes is received by the Company. Such payment may be made in cash or its equivalent or, if permitted by the Committee, (i) by exchanging shares of Stock owned by the Participant for at least six months (or for such greater or lesser period as the Committee may determine from time to time) and which are not the subject of any pledge or other security interest, (ii) through an arrangement with a broker approved by the Company whereby payment of the exercise price is accomplished with the proceeds of the sale of Stock, or (iii) by a combination of the foregoing, provided that the combined value of all cash and cash equivalents and the Fair Market Value of any such Stock so tendered to the Company, valued as of the date of such tender, is at least equal to such exercise price of the portion of the Option being exercised. Additionally, to the extent authorized by the Committee (whether at or after the grant date), Options may be Net Exercised subject to such terms and conditions as the Committee may from time to time impose. A Participant need not present stock certificates when making payment in Stock, so long as other satisfactory proof of ownership of the Stock tendered is provided (e.g., attestation of ownership of a sufficient number of shares of Stock to pay the exercise price).
(e) Payment of SAR Amount. Upon exercise of a SAR, a Participant shall be entitled to receive payment from the Company in an amount determined by multiplying: (x) the excess of the Fair Market Value of a share of Stock on the date of exercise over the grant price by (y) the number of shares of Stock with respect to which the SAR is exercised. At the sole discretion of the Committee, the payment upon SAR exercise may be in cash, in shares of Stock of equivalent value, or in some combination thereof.
(f) Incentive Stock Option Status. Notwithstanding anything in this Plan to the contrary, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be so exercised, so as to disqualify the Plan under Section 422 of the Code.
(g) Termination of Service.
(i) Special Termination. Unless otherwise determined by the Committee at or after the grant date, or except as provided in an employment or individual severance agreement between a Participant and an Employer, if the Participant’s Service is terminated due to a Special Termination, then all Options and SARs held by the Participant on the effective date of such Special Termination shall vest and become exercisable and shall remain exercisable until the first to occur of (A) the first anniversary of the effective date of such Special Termination (or, for Incentive Stock Options, the first anniversary of such Special Termination) or (B) the expiration date of the Option or SAR.
(ii) Termination for any Other Reason. Unless otherwise determined by the Committee at or after the grant date, or except as provided in an employment or individual severance agreement between a Participant and an Employer, (A) if the Participant’s Service is voluntarily or involuntarily terminated for any reason other than a Special Termination prior to the expiration date of the Option or SAR, any Options and SARs that have not become vested and exercisable on or before the effective date of such termination shall terminate on such effective date, and (B) if the Participant’s Service is terminated voluntarily or involuntarily for any reason other than a Special Termination or for Cause, any vested and exercisable Options and SARs then held by the Participant shall remain exercisable for a period of three (3) months following the effective date of such termination of Service.
(iii) Termination for Cause. Notwithstanding anything contrary in this Section 7(g), if the Participant’s Service is terminated for Cause, then all Options or SARs (whether or not then vested or exercisable) shall terminate and be canceled immediately upon such termination, regardless of whether then vested or exercisable.
(iv) Termination in Connection with a Change in Control. Notwithstanding anything to the contrary in this Section 7(g), Section 9 of the Plan shall determine the treatment of Options and SARs upon a Change in Control, including the treatment of Options and SARs granted to any Participant whose Service is involuntarily terminated by an Employer other than for Cause or whose Service is terminated due to a Special Termination, in either case, on or after the date on which the shareholders of the Company approve the transaction giving rise to the Change in Control, but prior to the consummation thereof.
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SECTION 8. OTHER STOCK BASED AWARDS
(a) Other Stock Based Awards. The Committee shall have the authority to grant to Participants other types of Awards, which shall be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, Shares, either alone or in addition to or in conjunction with other Awards, and payable in Stock or cash. Without limitation, such Award may include the issuance of Shares of unrestricted Stock, which may be awarded in payment of director fees, in lieu of cash compensation, in exchange for cancellation of a compensation right, as a bonus, or upon the attainment of Performance Goals or otherwise, or rights to acquire Stock from the Company. Each such Other Stock Based Award shall be evidenced by an Award Agreement that shall specify the terms and conditions of the Award, including but not limited to, the time or times at which such Awards shall be made, and the number of Shares to be granted pursuant to such Awards or to which such Award shall relate; provided, however, that any Award that provides for purchase rights shall be priced at 100% of Fair Market Value on the date of grant of the Award.
(b) Termination of Service. In addition to any other terms and conditions that may be specified by the Committee, each Other Stock Based Award shall specify the impact of a termination of Service upon the rights of a Participant in respect of such Award. At the discretion of the Committee, such conditions may be the same as apply with respect to Restricted Stock or Restricted Stock Units, or may contain terms that are more or less favorable to the Participant.
SECTION 9. CHANGE IN CONTROL
(a) Accelerated Vesting and Payment.
(i) In General. Except as provided in an employment or individual severance agreement between a Participant and an Employer or an Award Agreement, upon a Change in Control (i) all outstanding Options shall become vested and exercisable immediately and (ii) the Restriction Period on all outstanding Restricted Stock and Restricted Stock Units shall lapse immediately. Additionally, the Committee (as constituted prior to the Change in Control) may provide that in connection with the Change in Control (i) each Option shall be canceled in exchange for an amount (payable in accordance with Section 9(a)(iii) below) equal to the excess, if any, of the Fair Market Value over the exercise price for such Option and (ii) each share of Restricted Stock and each Restricted Stock Unit shall be canceled in exchange for an amount (payable in accordance with Section 9(a)(iii) below) equal to the Fair Market Value, multiplied by the number of shares of Stock covered by such Award.
(ii) Performance Awards, Performance Shares and Performance Units. Except as provided in an Award Agreement, in the event of a Change in Control, (i) each outstanding Performance Award and Performance Share shall be canceled in exchange for a payment equal to the greater of (a) the payment that would have been payable had each such Performance Award or Performance Share been deemed equal to 100% or (b) the actual performance to date (or such greater or lesser percentage as the Committee shall specify at the grant date or such greater percentage as the Committee shall specify after the grant date) and (ii) each outstanding Performance Unit shall be canceled in exchange for a payment equal to the greater of (a) the value that would have been payable had each such Performance Unit been deemed equal to 100% or (b) the actual performance to date (or such greater or lesser percentage as the Committee shall specify at the grant date or such greater percentage as the Committee shall specify after the grant date) of its initially established dollar or local currency denominated value.
(iii) Payments. Payment of any amounts calculated in accordance with Sections 9(a)(i) and (ii) shall be made in cash or, if determined by the Committee (as constituted prior to the Change in Control), in shares of the stock of the New Employer having an aggregate fair market value equal to such amount or in a combination of such shares of stock and cash. All amounts payable hereunder shall be payable in full, as soon as reasonably practicable, but in no event later than ten business days, following the Change in Control. For purposes hereof, the fair market value of one share of stock of the New Employer shall be determined by the Committee (as constituted prior to the consummation of the transaction constituting the Change in Control) in good faith.
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(b) Termination of Service Prior to Change in Control. In the event that any Change in Control occurs as a result of any transaction described in clause (iii) or (iv) of the definition of such term, any Participant whose Service is involuntarily terminated by an Employer other than for Cause or is terminated due to a Special Termination, in either case, on or after the date on which the shareholders of the Company approve the transaction giving rise to the Change in Control, but prior to the consummation thereof, shall be treated, solely for purposes of this Plan (including, without limitation, this Section 9), as continuing in Service until the occurrence of such Change in Control and to have been terminated immediately thereafter.
SECTION 10. EFFECTIVE DATE, AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN OR AWARDS
(a) General. The Plan shall be effective on the Effective Date, and shall continue in effect, unless sooner terminated pursuant to this Section 10, until the tenth anniversary of the Effective Date, after which no new Awards may be granted under the Plan. The Board may at any time in its sole discretion, for any reason whatsoever, terminate or suspend the Plan, and from time to time may amend or modify the Plan; provided that without the approval by a majority of the votes cast at a duly constituted meeting of shareholders of the Company, no amendment or modification to the Plan may (i) materially increase the benefits accruing to Participants under the Plan, (ii) except as otherwise expressly provided in Section 4(d) of the Plan, materially increase the number of shares of Stock subject to the Plan or the individual Award limitations specified in Section 4(c) of the Plan, (iii) materially modify the requirements for participation in the Plan, or (iv) materially modify the Plan in any other way that would require shareholder approval under any regulatory requirement that the Committee determines to be applicable. In the event that the Committee shall determine that such action would, taking into account such factors as it deems relevant, be beneficial to the Company, the Committee may affirmatively act to amend, modify or terminate any outstanding Award at any time prior to payment or exercise in any manner not inconsistent with the terms of the Plan, subject to Section 10(b), including without limitation, to change the date or dates as of which (A) an Option becomes exercisable, (B) a Performance Award, Performance Share or Performance Unit is deemed earned, or (C) Restricted Stock and Restricted Stock Units becomes nonforfeitable, except that no outstanding Option or SAR may be amended or otherwise modified or exchanged (other than in connection with a transaction described in Section 4(d) of the Plan) in a manner that would have the effect of reducing its original exercise price or otherwise constitute repricing. Any such action by the Committee shall be subject to the Participant’s consent if the Committee determines that such action would adversely affect in any material way the Participant’s rights under such Award, whether in whole or in part. No amendment, modification or termination of the Plan or any Award shall adversely affect in any material way any Award theretofore granted under the Plan, without the consent of the Participant.
(b) Adjustment of Awards upon the Occurrence of Certain Events.
(i) Equity Restructurings. If the outstanding shares of Stock are increased, decreased, changed into or exchanged for a different number or kind of shares or securities of the Company through a non-reciprocal transaction between the Company and its stockholders that causes the per share fair market value underlying an Award to change, such as stock dividend, stock split, spin-off, rights offering, recapitalization through a large, non-recurring cash dividend, or other similar transaction, a proportionate adjustment shall be made to the number or kind of shares or securities allocated to Awards that have been granted prior to any such change. Any such adjustment in an outstanding Option or SAR shall be made without change in the aggregate exercise price applicable to the unexercised portion of such Option or SAR but with a corresponding adjustment in the exercise price for each share of Stock or other unit of any security covered by such Option or SAR.
(ii) Reciprocal Transactions. The Board may, but shall not be obligated to, make an appropriate and proportionate adjustment to an Award or to the exercise price of any outstanding Award, and/or grant an additional Award to the holder of any outstanding Award, to compensate for the diminution in the intrinsic value of the shares of Stock resulting from any reciprocal transaction.
(iii) Certain Unusual or Nonrecurring Events. In recognition of unusual or nonrecurring events affecting the Company or its financial statements, or in recognition of changes in applicable laws, regulations or accounting principles, and, whenever the Board determines that adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, the Board may, using reasonable care, make adjustments in the terms and conditions of, and the criteria included in, Awards. In case of an Award designed to qualify for the Performance-Based Exception (as defined in Code Section 409A), the Board will take care not to make an adjustment that would disqualify the Award.
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(c) Repricing and Backdating Prohibited. Notwithstanding anything in the Plan to the contrary, and except for the adjustments provided in Section 10(b), neither the Committee nor any other Person may decrease the exercise price for any outstanding Option or SAR after the date of grant nor allow a Participant to surrender an outstanding Option or SAR to the Company as consideration for the grant of a new Option or SAR with a lower exercise price. In addition, the Committee may not make a grant of an Option or SAR with a grant date that is effective prior to the date the Committee takes action to approve such Award.
SECTION 11. DEFERRALS AND SECTION 409A.
Notwithstanding anything in this Plan to the contrary, no terms of this Plan relating to Awards or any deferral with respect thereto shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be so exercised, so as to cause an Award, or the deferral or payment thereof, to become subject to interests and additional tax under Section 409A.
SECTION 12. TAXES.
(a) Withholding. The Employer shall have the right to deduct from all amounts paid to a Participant in cash (whether under this Plan or otherwise) any amount required by law to be withheld in respect of Awards under this Plan as may be necessary in the opinion of the Employer to satisfy any applicable tax withholding requirements under the laws of any country, state, province, city or other jurisdiction, including but not limited to income taxes, capital gains taxes, transfer taxes, social security contributions, and medicare tax contributions that are required by law to be withheld. In the case of payments of Awards in the form of Stock, at the Committee’s discretion, the Participant shall be required to either pay to the Employer the amount of any taxes required to be withheld with respect to such Stock or, in lieu thereof, the Employer shall have the right to retain (or the Participant may be offered the opportunity to elect to tender) the number of shares of Stock whose Fair Market Value equals such amount required to be withheld.
(b) No Guarantee of Tax Treatment. Notwithstanding any provisions of the Plan, the Company does not guarantee to any Participant or any other Person with an interest in an Award that (i) any Award intended to be exempt from Code Section 409A shall be so exempt, (ii) any Award intended to comply with Code Section 409A or Code Section 422 shall so comply, (iii) any Award shall otherwise receive a specific tax treatment under any other applicable tax law, nor in any such case will the Company or any Affiliate indemnify, defend or hold harmless any Person with respect to the tax consequences of any Award.
(c) Participant Responsibilities. If a Participant shall dispose of Stock acquired through exercise of an Incentive Stock Option within either (i) two (2) years after the date the Option is granted or (ii) one (1) year after the date the Option is exercised (i.e. a disqualifying disposition under the Code), such Participant shall notify the Company within seven (7) days of the date of such disqualifying disposition.
SECTION 13. GENERAL PROVISIONS.
(a) Nontransferability of Awards. No Award shall be assignable or transferable other than by will or the laws of descent and distribution; provided that the Committee may permit, on such terms and conditions as it shall establish, a Participant to transfer some or all of an Award to (i) the Participant’s spouse, child, or grandchild (the “Family Members”), (ii) a trust or trusts in which the Family Members have all of the beneficial interest, or (iii) a partnership or limited liability company in which such Family Members are the only partners or members. Any such transfer shall be without consideration and shall be irrevocable. No Award so transferred may be subsequently transferred, except by will or applicable laws of descent and distribution. The Committee may create additional conditions and requirements applicable to the transfer of Awards. Following the allowable transfer of a vested Option, such Option shall continue to be subject to the same terms and conditions as were applicable to the Option immediately prior to the transfer.
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Notwithstanding the foregoing, vested or earned Awards may be transferred without the Committee’s pre-approval if the transfer is made incident to a divorce as required pursuant to the terms of a “domestic relations order” as defined in Section 414(p) of the Code; provided that no such transfer will be allowed with respect to Incentive Stock Options if such transferability is not permitted by Code Section 422.
Except to the extent required by law, no right or interest of any Participant shall be subject to any lien, obligation or liability of the Participant. All rights with respect to Awards granted to a Participant under the Plan shall be exercisable during the Participant’s lifetime only by such Participant or, if applicable, his or her permitted transferee(s). The rights of such permitted transferee shall be limited to the rights conveyed to such permitted transferee, who shall be subject to and bound by the terms of the agreement or agreements between the Participant and the Company.
(b) No Right to Employment. The Plan and the issuance of an Award thereunder shall not confer upon a Participant any right with respect to continued employment or service with the Company or any Affiliate, or the right to continue as a Director or Consultant. The grant of an Award hereunder, and any future grant of Awards under the Plan is entirely voluntary, and at the complete discretion of the Company. Neither the grant of an Award nor any future grant of Awards by the Company shall be deemed to create any obligation to grant any further Awards, whether or not such a reservation is explicitly stated at the time of such a grant.
The Plan shall not be deemed to constitute, and shall not be construed by the Participant to constitute, part of the terms and conditions of employment and participation in the Plan shall not be deemed to constitute, and shall not be deemed by the Participant to constitute, an employment or labor relationship of any kind with an Employer. Each Employer expressly reserves the right at any time to dismiss a Participant free from any liability, or any claim under the Plan, except as provided herein and in any agreement entered into with respect to an Award. The Company expressly reserves the right to require, as a condition of participation in the Plan, that Award recipients agree and acknowledge the above in writing. Further, the Company expressly reserves the right to require Award recipients, as a condition of participation, to consent in writing to the collection, transfer from the Employer to the Company and third parties, storage and use of personal data for purposes of administering the Plan.
(c) No Rights as Shareholder. Subject to the provisions of the applicable Award contained in the Plan and in the Award Agreement, no Participant, Permitted Transferee or Designated Beneficiary shall have any rights as a shareholder with respect to any shares of Stock to be distributed under the Plan until he or she has become the holder thereof and become a party to the Shareholders Agreement, between Emerging Fuels Technology, Inc. and all of the shareholders thereof, dated November 2, 2010, and/or any subsequent agreements among the shareholders with respect to their ownership of shares of EFT.
(d) Governing Law. The validity, construction, interpretation, administration and effect of the Plan and of its rules and regulations, and rights relating to the Plan, shall be determined solely in accordance with the laws of the State of Oklahoma (without reference to the principles of conflicts of law).
(e) Construction. The headings and captions herein are provided for reference and convenience only, and shall not be considered part of this Plan, and shall not be employed in the construction of this Plan. Whenever the context may require any words used herein in the masculine, shall be construed in the feminine or neuter form; and wherever any words are used in the singular or plural, they shall be construed as though they were used in the plural or singular, as the case may be, in all cases where they would so apply.
(f) Severability. If any provision of the Plan or any award agreement or any Award (i) is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction, or as to any Person or Award, or (ii) would disqualify the Plan, any award agreement or any Award under any law the Committee deems applicable, then such provision should be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan, award agreement or Award, then such provision should be stricken as to such jurisdiction, Person or Award, and the remainder of the Plan, such award agreement and such Award will remain in full force and effect.
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(g) Compliance with Legal and Exchange Requirements. The Plan, the granting and exercising of Awards thereunder, and any obligations of the Company under the Plan, shall be subject to all applicable federal, state and foreign country laws, rules and regulations, and to such approvals by any regulatory or governmental agency as may be required, and to any rules or regulations of any exchange on which the Stock is listed. The Company, in its discretion, may postpone the granting and exercising of Awards, the issuance or delivery of Stock under any Award or any other action permitted under the Plan to permit the Company, with reasonable diligence, to complete such stock exchange listing or registration or qualification of such Stock or other required action under any federal, state or foreign country law, rule or regulation and may require any Participant to make such representations and furnish such information as it may consider appropriate in connection with the issuance or delivery of Stock in compliance with applicable laws, rules and regulations.
The Company shall not be obligated by virtue of any provision of the Plan to recognize the exercise of any Award or to otherwise sell or issue Stock in violation of any such laws, rules or regulations, and any postponement of the exercise or settlement of any Award under this provision shall not extend the term of such Awards. Neither the Company nor its directors or officers shall have any obligation or liability to a Participant with respect to any Award (or Stock issuable thereunder) that shall lapse because of such postponement.
(h) Indemnification. Each person who is or shall have been a member of the Committee and each delegate of such Committee shall be indemnified and held harmless by the Company against and from any loss, cost, liability or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit or proceeding to which he or she may be made a party or in which he or she may be involved in by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such action, suit or proceeding against him or her, provided that the Company is given an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it personally. The foregoing right of indemnification shall not be exclusive and shall be independent of any other rights of indemnification to which such persons may be entitled under the Company’s Certificate of Incorporation or by-laws, by contract, as a matter of law, or otherwise.
(i) No Impact on Benefits. Except as may otherwise be specifically stated under any employee benefit plan, policy or program, no amount payable in respect of any Award shall be treated as compensation for purposes of calculating a Participant’s right under any such plan, policy or program.
(j) No Constraint on Corporate Action. Nothing in this Plan shall be construed (i) to limit, impair or otherwise affect the Company’s right or power to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, or to merge or consolidate, or dissolve, liquidate, sell or transfer all or any part of its business or assets or (ii) to limit the right or power of the Company, or any Subsidiary, to take any action which such entity deems to be necessary or appropriate.
(k) No Fractional Shares. No fractional Shares or other securities may be issued or delivered pursuant to the Plan, and the Committee may determine whether cash, other securities or other property will be paid or transferred in lieu of any fractional Shares or other securities, or whether such fractional Shares or other securities or any rights to fractional Shares or other securities will be canceled, terminated or otherwise eliminated.
(l) Unfunded Plan. This Plan is unfunded and does not create, and should not be construed to create, a trust or separate fund with respect to the Plan’s benefits. This Plan does not establish any fiduciary relationship between the Company and any Participant or other Person. To the extent any Person holds any rights by virtue of an Award granted under the Plan, such rights are no greater than the rights of the Company’s general unsecured creditors.
* * * * * *
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EMERGING FUELS TECHNOLOGY, INC.
INCENTIVE STOCK OPTION AGREEMENT
This Stock Option AWARD Agreement (the “Agreement”) is made as of [●] (the “Grant Date”) by and between Emerging Fuels Technology, Inc. (the “Company”), an Oklahoma corporation, and [●] (“Grantee”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Company’s 2013 Equity Award Plan (the “Plan”). To the extent that any term of this Agreement conflicts or is otherwise inconsistent with any term of the Plan, as amended from time to time, the terms of the Plan shall take precedence and supersede any such conflict or inconsistent term contained herein.
WHEREAS, the Company and Grantee desire to enter into an agreement setting forth the terms pursuant to which the Company shall grant to Grantee an option to acquire certain shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”).
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. Pursuant to the Company’s 2013 Equity Award Plan (the “Plan”) the Company hereby grants to Grantee an option (the “Option”) to purchase an aggregate of [●] shares (the “Underlying Shares”) of Stock, par value $0.01 per share (“Common Stock”), of the Company at a price of $[●] per share (the “Exercise Price”), purchasable as set forth in and subject to the terms and conditions of this Incentive Stock Option Agreement (the “Agreement”) and the Plan. Except where the context otherwise requires, the term “Company” shall include the parent and all subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the Code. Capitalized terms used by not otherwise defined herein shall have the meaning ascribed to such terms in the Plan. To the extent that any term of this Agreement conflicts or is otherwise inconsistent with any term of the Plan, as amended from time to time, the terms of the Plan shall take precedence and supersede any such conflict or inconsistent term contained herein.
2. Incentive Stock Option. This Option is intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
3. Exercise of Option and Provisions for Termination.
(a) Vesting Schedule. Except as otherwise provided in this Agreement, this Option may be exercised prior to the tenth anniversary of the date of grant (or, in the case of an option described in paragraph (f) of Section 7 of the Plan, prior to the [●] anniversary of the date of grant) (hereinafter the “Expiration Date”) in installments as to not more than the number of shares of Common Stock then vested pursuant to the vesting provisions set forth below. The right of exercise shall be cumulative so that if this Option is not exercised to the maximum extent permissible during any exercise period it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time prior to the Expiration Date or the earlier termination of this Option.
This Option shall become vested as to [●]% of the Underlying Shares on [●] (the “First Vest Date”). Thereafter, this Option shall become vested as to an additional [●]% of the Underlying Shares on each [●] anniversary of the First Vest Date for the next [●] periods. This option may not be exercised at any time on or after the Expiration Date.
(b) Exercise Procedure. Subject to the conditions set forth in this Agreement, this Option shall be exercised by the Employee’s delivery of written notice of exercise to the Chief Financial Officer of the Company, specifying the number of shares of Common Stock to be purchased and the Exercise Price to be paid therefor and accompanied by payment in full in accordance with Section 4 hereof; provided, however, that if this Option is held by a Section 16 Participant, such written notice shall be delivered to the Committee. Such exercise shall be effective upon receipt by the Chief Financial Officer or the Committee, as applicable, of the Company of such written notice together with the required payment. The Employee may purchase less than the number of Underlying Shares for which this Option is vested and exercisable at any point in time; provided, however, that no partial exercise of this Option may be for any fractional shares.
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(c) Continuous Employment Required. Except as otherwise provided in this Section 3, this Option may not be exercised unless the Employee, at the time that he or she exercises this Option, is, and has been at all times since the date of grant of this Option, an employee of the Company. For all purposes of this Agreement, (i) “employment” shall be defined in accordance with the provisions of Section 1.421-7(h) of the regulations promulgated under the Code or any successor regulations, and (ii) if this option shall be assumed or a new option substituted therefor in a transaction to which Section 424(a) of the Code applies, employment by such assuming or substituting corporation shall be considered for all purposes of this option to be employment by the Company.
(d) Exercise Period Upon Termination of Employment. If the Employee ceases to be employed by the Company for any reason other than death or Disability or a discharge for Cause, the right to exercise this option shall terminate three months after such cessation (but in no event after the Expiration Date); provided, however, that this option shall be exercisable only to the extent that the Employee was entitled to exercise this option on the date of such cessation.
(e) Exercise Period Upon Death or Disability. If the Employee dies or becomes Disabled prior to the Expiration Date while he or she is an employee of the Company, or if the Employee dies within three months after the Employee ceases to be so employed (other than as the result of a discharge for Cause as specified in paragraph (f) below), this Option shall be exercisable, within the period of one year following the date of death or Disability of the Employee (but in no event after the Expiration Date), by the Employee or by the person to whom this option is transferred by will or the laws of descent and distribution or pursuant to a qualified domestic relations order (as defined in the Code) or Title I of the Employee Retirement Income Security Act (“ERISA”), or the rules thereunder; provided, however, that this option shall be exercisable only to the extent that this option was exercisable by the Employee on the date of his or her death or disability. Except as otherwise indicated by the context, the term “Employee,” as used in this Agreement, shall be deemed to include the estate of the Employee or any person who acquires the right to exercise this Option by bequest or inheritance or otherwise by reason of the death of the Employee or pursuant to a qualified domestic relations order (as defined in the Code) or Title I of ERISA, or the rules promulgated thereunder.
(f) Discharge for Cause. If the Employee, prior to the Expiration Date, ceases his or her employment with the Company because he or she is discharged for Cause, the right to exercise this Option shall terminate immediately upon such termination for Cause.
4. Payment of Exercise Price.
(a) Method of Payment. Payment of the Exercise Price for the Underlying Shares purchased upon exercise of this Option shall be made by delivery to the Company of cash or a check to the order of the Company in an amount equal to the aggregate Exercise Price for such Underlying Shares (a “Cash Exercise”), or by delivery to the Company of shares of Common Stock then owned by the Employee having a Fair Market Value, as of the date prior to the date of exercise of this Option, equal in amount to the aggregate Exercise Price for such Underlying Shares (a “Cashless Exercise”), or by any combination of Cash Exercise and Cashless Exercise.
(b) Delivery of Shares Tendered in Payment of Exercise Price. An Employee who elects to make a Cashless Exercise, in whole or in part, may not transfer fractional shares or shares of Common Stock with an aggregate Fair Market Value in excess of the aggregate Exercise Price plus applicable withholding taxes. An Employee shall provide satisfactory proof of ownership of the Common Stock tendered in connection with a Cashless Exercise, as determined by the Chief Financial Officer of the Company in his or her sole discretion; provided, however, that if this Option is held by a Section 16 Participant, such determination shall be made by the Committee.
(c) Restrictions on Use of Option Stock. Notwithstanding the foregoing, no shares of Common Stock of the Company may be tendered in connection with a Cashless Exercise to the extent that the shares of Common Stock were (i) acquired within 12 months before the date of such Cashless Exercise or (ii) were acquired in connection with an Award pursuant to the Plan.
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5. Delivery of Shares; Compliance with Securities Laws, Etc.
(a) General. The Company shall, upon payment of the Exercise Price, instruct the transfer agent for the Company’s Common Stock to make entry in the books and records of the Company reflecting the Employee as the holder of record the Underlying Shares so purchased and shall promptly deliver to the Employee a statement reflecting such an entry; provided, however, that if any law or regulation requires the Company to take any action with respect to such Underlying Shares before the issuance thereof, then the date of such entry shall be extended for the period necessary to complete such action.
(b) Listing, Qualification, Etc. This Option shall be subject to the requirement that if, at any time, legal counsel to the Company shall determine that the listing, registration or qualification of the shares subject hereto upon any securities exchange or under any state or Federal law, or the consent or approval of any governmental or regulatory body, is necessary as a condition of, or in connection with, the issuance or purchase of Underlying Shares hereunder, this Option may not be exercised, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained on conditions acceptable to the Committee. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification.
6. Non-transferability of Option. Except as provided in paragraph (e) of Section 3, this Option is personal and no rights granted hereunder may be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) nor shall any such rights be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this Option or of such rights contrary to the provisions hereof, or upon the levy of any attachment or similar process upon this Option or such rights, this Option and such rights shall, at the election of the Company, become null, void and of no further force of effect.
7. No Special Employment Rights. Nothing contained in the Plan or this Agreement shall be construed or deemed by any Person under any circumstances to bind the Company to continue the employment of the Employee for the period within which this Option may be exercised. However, during the period of the Employee’s employment, the Employee shall render diligently and faithfully the services which are assigned to the Employee from time to time by the Board, any committee thereof, or by the executive officers of the Company and shall at no time take any action which, directly or indirectly, would be inconsistent with the best interests of the Company.
8. Rights as a Shareholder. The Employee shall have no rights as a shareholder with respect to any shares which may be purchased by exercise of this Option unless and until the date on which Employee becomes the holder of record of the Underlying Shares purchased pursuant to this option on the books and records of the Company, as maintained by the transfer agent for the Company’s Common Stock and become a party to the Shareholders Agreement, between Emerging Fuels Technology, Inc. and all of the shareholders thereof, dated November 2, 2010, and/or any subsequent agreements among the shareholders with respect to their ownership of shares of EFT. No adjustment shall be made for dividends or other rights for which the record date is prior to such date.
9. Adjustments.
(a) General. If: (i) the Company shall at any time be involved in a merger or other transaction in which shares of Common Stock are changed or exchanged, (ii) the Company shall subdivide or combine shares of Common Stock or the Company shall declare a dividend payable in shares of Common Stock, other securities or other property, (iii) the Company shall effect a cash dividend the amount of which, on a per share of Common Stock basis, exceeds ten percent (10%) of the Fair Market Value of a share of Common Stock at the time the dividend is declared, or the Company shall effect any other dividend or other distribution on shares of Common Stock in the form of cash, or a repurchase of shares of Common Stock, that the Board determines by resolution is special or extraordinary in nature or that is in connection with a transaction that the Company characterizes publicly as a recapitalization or reorganization involving shares of Common Stock, or (iv) any other event shall occur, which in the judgment of the Board or Committee necessitates an adjustment to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, adjust as applicable: (i) the number and kind of shares or other securities subject to this Option and (ii) the Exercise Price for each share of Common Stock subject to this Option, without changing the aggregate Exercise Price as to which this option remains exercisable.
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(b) Board Authority to Make Adjustments. Adjustments under this Section 9 will be made by the Committee, whose determination as to what adjustments, if any, will be made and the extent thereof will be final and binding. No fractional shares will be issued pursuant to this option on account of any such adjustments.
(c) Limits on Adjustments. No adjustment shall be made under this Section 9 which would, within the meaning of any applicable provision of the Code, constitute a modification, extension or renewal of this option or a grant of additional benefits to the Employee.
10. Change of Control.
(a) General. In the event of a Change of Control, the Employee shall, with respect to this option or any unexercised portion hereof, be entitled to the rights and benefits, and be subject to the limitations, set forth in Section 9 of the Plan.
(b) Acceleration. In the event of the occurrence of a Change of Control, the vesting schedule set forth in Section 3(a) of this Agreement may be accelerated in whole or in part at the sole discretion of the Committee.
11. Withholding Taxes. The Company’s obligation to deliver Underlying Share upon the exercise of this Option shall be subject to the Employee’s satisfaction of all applicable Federal, state and local income and employment tax withholding requirements.
12. Limitations on Disposition of Underlying Shares. It is understood and intended that this Option shall qualify as an “incentive stock option” as defined in Section 422 of the Code. Accordingly, the Employee understands that in order to obtain the benefits of an incentive stock option under Section 421 of the Code, no sale or other disposition may be made of any Underlying Shares acquired upon exercise of this Option within one year after the day of the transfer of such shares to the Employee, nor within two years after the grant of this Option. If the Employee intends to dispose, or does dispose (whether by sale, exchange, gift, transfer or otherwise), of any such Underlying Shares within said periods, he or she will notify the Company in writing within ten days after such disposition.
13. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(b) Except as provided herein, this option may not be amended or otherwise modified unless evidenced in writing and signed by the Company and the Employee.
(c) All notices under this option shall be mailed or delivered by hand to the parties at their respective addresses set forth beneath their names below or at such other address as may be designated in writing by either of the parties to one another.
(d) Whenever the context may require, any pronouns used in this Agreement are deemed to include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns are deemed to include the plural, and vice versa.
(e) This option shall be governed by and construed in accordance with the laws of the State of Oklahoma, without giving effect to the principles of conflicts of laws thereof.
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| Date of Grant , 2013 | EMERGING FUELS TECHNOLOGY, INC. |
| By: ______________________________ | |
| Printed Name: _____________________ | |
| Title: ____________________________ |
EMPLOYEE’S ACCEPTANCE
The undersigned hereby accepts the foregoing Incentive Stock Option and agrees to the terms and conditions of this Agreement and the Company’s 2013 Equity Award Plan. The undersigned hereby acknowledges receipt of a copy of the Company’s 2013 Equity Award Plan.
| EMPLOYEE | |||||
| Printed Name: | |||||
| Address: | |||||
| Social Security Number: | |||||
SPOUSAL CONSENT
The spouse of _________________________, the grantee of the above Incentive Stock Option, is aware of, understands, and consents to the provisions of the Incentive Stock Option and the Company’s 2013 Equity Award Plan, and its binding effect upon any community property interest or marital settlement awards he or she may now or hereafter own or receive, and agrees that the termination of his or her marital relationship with such Member for any reason shall not have the effect of removing any Incentive Stock Option Award subject to the Company’s 2013 Equity Award Plan Agreement from the coverage thereof and that his or her awareness, understanding, consent, and agreement is evidenced by his or her signature below.
| By: ______________________________ | |
| Printed Name: _____________________ |
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EMERGING FUELS TECHNOLOGY, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Stock Option AWARD Agreement (the “Agreement”) is made as of [●] (the “Grant Date”) by and between Emerging Fuels Technology, Inc. (the “Company”), an Oklahoma corporation, and [●] (“Grantee”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Company’s 2013 Equity Award Plan (the “Plan”). To the extent that any term of this Agreement conflicts or is otherwise inconsistent with any term of the Plan, as amended from time to time, the terms of the Plan shall take precedence and supersede any such conflict or inconsistent term contained herein.
WHEREAS, the Company and Grantee desire to enter into an agreement setting forth the terms pursuant to which the Company shall grant to Grantee an option to acquire certain shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”).
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. Pursuant to the Company’s 2013 Equity Award Plan (the “Plan”), the Company hereby grants to Grantee an option (the “Option”) to purchase an aggregate of [●] shares (the “Underlying Shares”) of Common Stock, par value $0.01 per share (“Common Stock”), of the Company at a price of $[●] per share (the “Exercise Price”), purchasable as set forth in and subject to the terms and conditions of this Nonstatutory Stock Option Agreement (the “Agreement”) and the Plan. Except where the context otherwise requires, the term “Company” shall include the parent and all subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the Code. Capitalized terms used by not otherwise defined herein shall have the meaning ascribed to such terms in the Plan. To the extent that any term of this Agreement conflicts or is otherwise inconsistent with any term of the Plan, as amended from time to time, the terms of the Plan shall take precedence and supersede any such conflict or inconsistent term contained herein.
2. Exercise of Option and Provisions for Termination.
(a) Vesting Schedule. Except as otherwise provided in this Agreement, this Option may be exercised prior to the tenth anniversary of the date of grant (or, in the case of an option described in paragraph (f) of Section 7 of the Plan, prior to the [●] anniversary of the date of grant) (hereinafter the “Expiration Date”) in installments as to not more than the number of shares of Common Stock then vested pursuant to the vesting provisions set forth below. The right of exercise shall be cumulative so that if this Option is not exercised to the maximum extent permissible during any exercise period it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time prior to the Expiration Date or the earlier termination of this Option.
This Option shall become vested as to [●]% of the Underlying Shares on [●] (the “First Vest Date”). Thereafter, this Option shall become vested as to an additional [●]% of the Underlying Shares on each anniversary of the First Vest Date for the next [●]% periods. This option may not be exercised at any time on or after the Expiration Date.
(b) Exercise Procedure. Subject to the conditions set forth in this Agreement, this Option shall be exercised by the Optionee’s delivery of written notice of exercise to the Chief Financial Officer of the Company, specifying the number of shares of Common Stock to be purchased and the Exercise Price to be paid therefor and accompanied by payment in full in accordance with Section 3 hereof; provided, however, that if this Option is held by a Section 16 Participant, such written notice shall be delivered to the Committee. Such exercise shall be effective upon receipt by the Chief Financial Officer or the Committee, as applicable, of the Company of such written notice together with the required payment. The Optionee may purchase less than the number of Underlying Shares for which this Option is vested and exercisable at any point in time; provided, however, that no partial exercise of this Option may be for any fractional shares.
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(c) Continuous Engagement Required. Except as otherwise provided in this Section 2, this Option may not be exercised unless the Optionee, at the time that he or she exercises this Option, is, and has been at all times since the date of grant of this Option, an employee of the Company, or in the case of an Optionee who is a Director of or Consultant to the Company, unless such relationship is not interrupted or terminated by the Company. For all purposes of this Agreement, (i) “employment” shall be defined in accordance with the provisions of Section 1.421-7(h) of the regulations promulgated under the Code or any successor regulations, and (ii) if this option shall be assumed or a new option substituted therefor in a transaction to which Section 424(a) of the Code applies, employment by such assuming or substituting corporation shall be considered for all purposes of this option to be employment by the Company.
(d) Exercise Period Upon Termination of Employment or Engagement. If the Optionee ceases to be employed by, or otherwise engaged as a Director of or Consultant to, the Company for any reason other than death or Disability or a discharge for Cause, the right to exercise this option shall terminate three months after such cessation (but in no event after the Expiration Date); provided, however, that this option shall be exercisable only to the extent that the Optionee was entitled to exercise this Option on the date of such cessation.
(e) Exercise Period Upon Death or Disability. If the Optionee dies or becomes Disabled prior to the Expiration Date while he or she is an employee of the Company or is otherwise engaged as a Director of or Consultant to the company, or if the Optionee dies within three months after the Optionee ceases to be so employed or engaged (other than as the result of a discharge for Cause as specified in paragraph (f) below), this Option shall be exercisable, within the period of one year following the date of death or Disability of the Optionee (but in no event after the Expiration Date), by the Optionee or by the person to whom this option is transferred by will or the laws of descent and distribution or pursuant to a qualified domestic relations order (as defined in the Code) or Title I of the Optionee Retirement Income Security Act (“ERISA”), or the rules thereunder; provided, however, that this option shall be exercisable only to the extent that this option was exercisable by the Optionee on the date of his or her death or disability. Except as otherwise indicated by the context, the term “Optionee,” as used in this Agreement, shall be deemed to include the estate of the Optionee or any person who acquires the right to exercise this Option by bequest or inheritance or otherwise by reason of the death of the Optionee or pursuant to a qualified domestic relations order (as defined in the Code) or Title I of ERISA, or the rules promulgated thereunder.
(f) Discharge for Cause. If the Optionee, prior to the Expiration Date, ceases his or her employment or engagement with the Company because he or she is discharged for Cause, the right to exercise this Option shall terminate immediately upon such termination for Cause.
3. Payment of Exercise Price.
(a) Method of Payment. Payment of the Exercise Price for the Underlying Shares purchased upon exercise of this Option shall be made by delivery to the Company of cash or a check to the order of the Company in an amount equal to the aggregate Exercise Price for such Underlying Shares (a “Cash Exercise”), or by delivery to the Company of shares of Common Stock then owned by the Optionee having a Fair Market Value, as of the date prior to the date of exercise of this Option, equal in amount to the aggregate Exercise Price for such Underlying Shares (a “Cashless Exercise”), or by any combination of Cash Exercise and Cashless Exercise.
(b) Delivery of Shares Tendered in Payment of Exercise Price. An Optionee who elects to make a Cashless Exercise, in whole or in part, may not transfer fractional shares or shares of Common Stock with an aggregate Fair Market Value in excess of the aggregate Exercise Price plus applicable withholding taxes. An Optionee shall provide satisfactory proof of ownership of the Common Stock tendered in connection with a Cashless Exercise, as determined by the Chief Financial Officer of the Company in his or her sole discretion; provided, however, that if this Option is held by a Section 16 Participant, such determination shall be made by the Committee.
(c) Restrictions on Use of Option Stock. Notwithstanding the foregoing, no shares of Common Stock of the Company may be tendered in connection with a Cashless Exercise to the extent that the shares of Common Stock were (i) acquired within 12 months before the date of such Cashless Exercise or (ii) were acquired in connection with an Award pursuant to the Plan.
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4. Delivery of Shares; Compliance with Securities Laws, Etc.
(a) General. The Company shall, upon payment of the Exercise Price, instruct the transfer agent for the Company’s Common Stock to make entry in the books and records of the Company reflecting the Optionee as the holder of record the Underlying Shares so purchased and shall promptly deliver to the Optionee a statement reflecting such an entry; provided, however, that if any law or regulation requires the Company to take any action with respect to such Underlying Shares before the issuance thereof, then the date of such entry shall be extended for the period necessary to complete such action.
(b) Listing, Qualification, Etc. This Option shall be subject to the requirement that if, at any time, legal counsel to the Company shall determine that the listing, registration or qualification of the shares subject hereto upon any securities exchange or under any state or Federal law, or the consent or approval of any governmental or regulatory body, is necessary as a condition of, or in connection with, the issuance or purchase of Underlying Shares hereunder, this Option may not be exercised, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained on conditions acceptable to the Committee. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification.
5. Non-transferability of Option. Except as provided in paragraph (e) of Section 2, this Option is personal and no rights granted hereunder may be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) nor shall any such rights be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this Option or of such rights contrary to the provisions hereof, or upon the levy of any attachment or similar process upon this Option or such rights, this Option and such rights shall, at the election of the Company, become null, void and of no further force of effect.
6. No Special Employment or Consulting Rights. Nothing contained in the Plan or this Agreement shall be construed or deemed by any Person under any circumstances to bind the Company to continue the employment of the Optionee or the engagement of a Director or Consultant for the period within which this Option may be exercised. However, during the period of the Optionee’s employment or engagement, the Optionee shall render diligently and faithfully the services which are assigned to the Optionee from time to time by the Board, any committee thereof, or by the executive officers of the Company and shall at no time take any action which, directly or indirectly, would be inconsistent with the best interests of the Company.
7. Rights as a Shareholder. The Optionee shall have no rights as a shareholder with respect to any shares which may be purchased by exercise of this Option unless and until the date on which Optionee becomes the holder of record of the Underlying Shares purchased pursuant to this option on the books and records of the Company, as maintained by the transfer agent for the Company’s Common Stock and become a party to the Shareholders Agreement, between Emerging Fuels Technology, Inc. and all of the shareholders thereof, dated November 2, 2010, and/or any subsequent agreements among the shareholders with respect to their ownership of shares of EFT. No adjustment shall be made for dividends or other rights for which the record date is prior to such date.
8. Adjustments.
(a) General. If: (i) the Company shall at any time be involved in a merger or other transaction in which shares of Common Stock are changed or exchanged, (ii) the Company shall subdivide or combine shares of Common Stock or the Company shall declare a dividend payable in shares of Common Stock, other securities or other property, (iii) the Company shall effect a cash dividend the amount of which, on a per share of Common Stock basis, exceeds ten percent (10%) of the Fair Market Value of a share of Common Stock at the time the dividend is declared, or the Company shall effect any other dividend or other distribution on shares of Common Stock in the form of cash, or a repurchase of shares of Common Stock, that the Board determines by resolution is special or extraordinary in nature or that is in connection with a transaction that the Company characterizes publicly as a recapitalization or reorganization involving shares of Common Stock, or (iv) any other event shall occur, which in the judgment of the Board or Committee necessitates an adjustment to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, adjust as applicable: (i) the number and kind of shares or other securities subject to this Option and (ii) the Exercise Price for each share of Common Stock subject to this Option, without changing the aggregate Exercise Price as to which this option remains exercisable.
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(b) Board Authority to Make Adjustments. Adjustments under this Section 8 will be made by the Committee, whose determination as to what adjustments, if any, will be made and the extent thereof will be final and binding. No fractional shares will be issued pursuant to this option on account of any such adjustments.
(c) Limits on Adjustments. No adjustment shall be made under this Section 8 which would, within the meaning of any applicable provision of the Code, constitute a modification, extension or renewal of this option or a grant of additional benefits to the Optionee.
9. Change of Control.
(a) General. In the event of a Change of Control, the Optionee shall, with respect to this option or any unexercised portion hereof, be entitled to the rights and benefits, and be subject to the limitations, set forth in Section 9 of the Plan.
(b) Acceleration. In the event of the occurrence of an Change of Control, the vesting schedule set forth in Section 2(a) of this Agreement may be accelerated in whole or in part at the sole discretion of the Committee.
10. Withholding Taxes. The Company’s obligation to deliver Underlying Shares upon the exercise of this Option shall be subject to the Optionee’s satisfaction of all applicable Federal, state and local income and employment tax withholding requirements.
11. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(b) Except as provided herein, this option may not be amended or otherwise modified unless evidenced in writing and signed by the Company and the Optionee.
(c) All notices under this option shall be mailed or delivered by hand to the parties at their respective addresses set forth beneath their names below or at such other address as may be designated in writing by either of the parties to one another.
(d) Whenever the context may require, any pronouns used in this Agreement are deemed to include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns are deemed to include the plural, and vice versa.
(e) This option shall be governed by and construed in accordance with the laws of the State of Oklahoma, without giving effect to the principles of conflicts of laws thereof.
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| Date of Grant , 2013 | EMERGING FUELS TECHNOLOGY, INC. | ||||
| By: | |||||
| Printed Name: | |||||
| Title: | |||||
| Address: | |||||
| Social Security Number: | |||||
SPOUSAL CONSENT
The spouse of ________________________, the grantee of the above Non-Qualified Stock Option, is aware of, understands, and consents to the provisions of the Non-Qualified Stock Option and the Company’s 2013 Equity Award Plan, and its binding effect upon any community property interest or marital settlement awards he or she may now or hereafter own or receive, and agrees that the termination of his or her marital relationship with such Member for any reason shall not have the effect of removing any Non-Qualified Stock Option Award subject to the Company’s 2013 Equity Award Plan Agreement from the coverage thereof and that his or her awareness, understanding, consent, and agreement is evidenced by his or her signature below.
| By: ______________________________ | |
| Printed Name: _____________________ |
| 27 |
EMERGING FUELS TECHNOLOGY, INC.
RESTRICTED STOCK AGREEMENT
This RESTRICTED STOCK AGREEMENT (the “Agreement”) is made as of [●] (the “Grant Date”) by and between Emerging Fuels Technology, Inc. (the “Company”), an Oklahoma corporation, and [●] (the “Stockholder”). Capitalized terms used by not otherwise defined herein shall have the meaning ascribed to such terms in the Company’s 2013 Equity Award Plan (the “Plan”). To the extent that any term of this Agreement conflicts or is otherwise inconsistent with any term of the Plan, as amended from time to time, the terms of the Plan shall take precedence and supersede any such conflict or inconsistent term contained herein.
WHEREAS, the Company and Stockholder desire to enter into an agreement pursuant to which the Company shall grant to Stockholder [●] shares (the “Shares”) of Common Stock, par value $0.01 per share, of the Company (the “Common Stock”); and
WHEREAS, as a condition to the grant and transfer of the Shares, the parties have agreed that the Shares shall be subject to a stock restriction agreement containing the terms and conditions herein;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Shares to be Subject to Restriction. The Stockholder agrees that the Shares shall be subject to the Purchase Option (as defined below) set forth in Section 2 of this Agreement, to the restrictions on transfers set forth in Section 4 of this Agreement, and to any additional provisions of the Plan applicable to such Shares during the Restriction Period.
2. Purchase Option. If the Stockholder ceases to be an executive officer, employee, or Director of, or a Consultant to, the Company for any reason or no reason, with or without cause, at any time prior to [●] (the “Triggering Event”), the Company or its assignee (to the extent permissible under applicable securities laws) shall have the right and option (the “Purchase Option”) to purchase from the Stockholder, at a price of $[●] per share (the “Option Price”), the following number of Shares: (a) if the Triggering Event occurs prior to [●] (the “First Vest Date”), all of the Shares shall be subject to the Purchase Option, (b) on the First Vest Date [●]% of the total number of Shares shall vest and no longer be subject to the Purchase Option, (c) on [●] (the “Second Vest Date”) [●]% of the total number of Shares shall vest and no longer be subject to the Purchase Option, (d) on [●] (the “Third Vest Date”) [●]% of the total number of Shares shall vest and no longer be subject to the Purchase Option
Notwithstanding the foregoing provisions of this Section 2, in the event of a Change of Control during the Restriction Period, the vesting schedule set forth in this Section 2 may be accelerated in whole or in part at the sole discretion of the Committee.
3. Exercise of Purchase Option, Closing and Payment for Shares.
(a) The Company may exercise the Purchase Option by delivering or mailing to the Stockholder, in accordance with Section 12, written notice of exercise within thirty (30) days after the Triggering Event together with a check in the amount of the aggregate Option Price with respect to Shares purchased pursuant to the Purchase Option. The notice must specify the number of Shares to be purchased under the Purchase Option. If and to the extent that the Purchase Option is not exercised, in whole or in part, within the thirty (30) day period, the Purchase Option (or its unexercised part, as applicable) will automatically expire and terminate effective upon the expiration of the thirty (30) day period.
(b) Promptly upon delivery or mailing to the Stockholder of the written notice and aggregate Option Price as set forth in Section 3(a) above, the Company shall cause to be cancelled on its books and records all Shares held by the Stockholder and subject to the exercise of the Purchase Option by the Company.
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(c) After the time at which the Company delivers or mails to the Stockholder the written notice and aggregate Option Price as set forth in Section 3(a) above, the Company shall not pay any dividend to the Stockholder on account of the Shares subject to the Purchase Option so exercised or permit the Stockholder to exercise any of the privileges or rights of a Stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) The Option Price shall be payable in immediately available funds.
4. Restrictions on Transfer. The Stockholder shall not, during the term of the Purchase Option, sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise, any of the Shares, or any interest therein, unless and until such are no longer subject to the Purchase Option.
5. Effect of Prohibited Transfer. The Company will not be required (a) to transfer on its books any Shares which have been sold or transferred in violation of any of the provisions set forth in this Agreement, or (b) to treat as owner of such Shares, or to pay dividends to, any transferee to whom any such Shares have been so sold or transferred.
6. Restrictive Legend. All certificates representing Shares subject to this Agreement shall bear a legend in substantially the following form, in addition to any other legends that may be required under applicable federal or state securities laws:
“The shares represented by this certificate are subject to an option to purchase and restrictions on transfer set forth in a certain Stock Restriction Agreement between the corporation and the registered owner of this certificate, a copy of which is available for inspection at the offices of the Secretary of the corporation.”
7. Adjustments for Stock Splits, Stock Dividends, etc. Subject to the provisions of Section 9 of the Plan, if at any time during the term of the Purchase Option there is any stock split-up, stock dividend, stock distribution or other reclassification of the Common Stock of the Company, any and all new, substituted or additional securities to which the Stockholder is entitled by reason of its ownership of the Shares will be immediately subject to the Purchase Option, the restrictions on transfer and the other provisions of this Agreement in the same manner and to the same extent as the Shares, and the respective option prices shall be appropriately adjusted.
8. Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement and each other provision of this Agreement will be severable and enforceable to the extent permitted by law.
9. Binding Effect. This Agreement is binding upon and shall inure to the benefit of the Company and the Stockholder and their respective heirs, executors, administrators, legal representatives, successors and assigns, as applicable, subject to the restrictions on transfer set forth in Section 4 herein.
10. No Special Employment or Consulting Rights. Nothing contained in the Plan or this Agreement shall be construed or deemed by any Person under any circumstance to bind the Company to continue the employment of the Stockholder for the period within which this Purchase Option may be exercised. However, during the period of the Stockholder’s employment or engagement, the Stockholder shall render diligently and faithfully the services which are assigned to the Stockholder from time to time by the Board, any committee thereof, or by the executive officers of the Company and shall at no time take any action which, directly or indirectly, would be inconsistent with the best interests of the Company.
11. Withholding Taxes. The Company’s obligation to deliver Shares upon the grant shall be subject to the Employee’s satisfaction of all applicable Federal, state and local income and employment tax withholding requirements.
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12 Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(b) Except as provided herein, this Agreement may not be amended or otherwise modified unless evidenced in writing and signed by the Company and the Stockholder.
(c) All notices under this option shall be mailed or delivered by hand to the parties at their respective addresses set forth beneath their names below or at such other address as may be designated in writing by either of the parties to one another.
(d) Whenever the context may require, any pronouns used in this Agreement are deemed to include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns are deemed to include the plural, and vice versa.
(e) This Agreement shall be governed by and construed in accordance with the laws of the State of Oklahoma, without giving effect to the principles of conflicts of laws thereof.
[NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the [ ● ], 2013.
| EMERGING FUELS TECHNOLOGY, INC. | |||||
| By: | |||||
| Printed Name: | |||||
| Title: | |||||
| STOCKHOLDER | |||||
| By: | |||||
| Printed Name: | |||||
| Address: | |||||
| Social Security Number: | |||||
SPOUSAL CONSENT
The spouse of ________________________, the Stockholder subject to the above Restricted Stock Agreement, is aware of, understands, and consents to the provisions of the Restricted Stock Agreement and the Company’s 2013 Equity Award Plan, and its binding effect upon any community property interest or marital settlement awards he or she may now or hereafter own or receive, and agrees that the termination of his or her marital relationship with such Member for any reason shall not have the effect of removing any Restricted Stock Agreement subject to the Company’s 2013 Equity Award Plan Agreement from the coverage thereof and that his or her awareness, understanding, consent, and agreement is evidenced by his or her signature below.
| By: ______________________________ | |
| Printed Name: _____________________ |
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Exhibit 11
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the inclusion in this Offering Statement on Form 1-A of our report dated August 2, 2021, of Emerging Fuels Technology, Inc. relating to the audits of the financial statements for the years ending December 31, 2020 and 2019.
/s/ M&K CPAS, PLLC
www.mkacpas.com
Houston, Texas
August 2, 2021
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