Exhibit 3.2
CERTIFICATE OF INCORPORATION
OF
FUEL TECH, INC.
1. The name of the corporation is Fuel Tech, Inc.
2. The corporation's original certificate of incorporation was filed on
June 19, 1987, under the name "Fuel-Tech N.V." in the Netherlands
Antilles.
3. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the city of
Wilmington, County of New Castle. The name of its registered agent at
such address is The Corporation Trust Company.
4. The nature of the business or purpose to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be
organized under the General Corporation law of Delaware.
5. The corporation shall have authority to issue the total number of Forty
Million (40,000,000) shares of the par value of $0.01 per share,
amounting in the aggregate to Four Hundred Thousand Dollars
($400,000.00), and of such shares Forty Million (40,000,000) shall be
designated as common stock.
6. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter,
amend, rescind or repeal the by-laws of the corporation.
7. Elections of Directors need not be by written ballot unless the by-laws
of the corporation shall so provide.
8. Meetings of stockholders may be held within or without the state of
Delaware, as the by-laws may provide. The books of the corporation may
be kept outside of the State of Delaware at such place or places as may
be designed from time to time by the board of directors or in the
by-laws of the corporation.
9. (a) A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director except that this Article
9 shall not eliminate or limit a director's liability (i) for
any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware
General Corporation law, or (iv) for any transaction from which
the director derived an improper personal benefit.
(b) If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article 9 to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so
amended from time to time.
(c) Any repeal or modification of this Article 9 shall not increase
the personal liability of any director of this corporation for
any act or occurrence taking place prior to such repeal or
modification, or otherwise adversely affecting any right or
protection of a director of the corporation existing at the
time of such repeal or modification.
10. (a) Except as otherwise provided below, the corporation shall, to
the fullest extent permitted by law, indemnify each person who
is, or shall have been, a director or officer of the
corporation or who is or was a director or officer of the
corporation and is serving, or shall have served, at the
request of the corporation, as a director, officer, employee or
agent of another organization or in any capacity with respect
to any employee benefit plan of the corporation, against all
liabilities and expenses (including judgments, fines,
penalties, amounts paid or to be paid in settlement, and
reasonable attorneys fees) imposed upon or incurred by any such
person (the "Indemnitee") in connection with, or arising out
of, the defense of disposition of any action, suit or other
proceeding, whether civil or criminal, in which he may be a
defendant or with which he may be threatened or otherwise
involved, directly or indirectly, by reason of his being or
having been such a director, officer, employee or agent or as a
result of his serving or having served with respect to any such
employee benefit plan; provided, however, that the corporation
shall provide no indemnification with respect to any matter as
to which any such Indemnitee shall be finally adjudicated in
such action suit or proceeding not to have acted in good faith
in the reasonable belief that his action was (i) in the best
interests of the corporation or (ii) to the extent such matter
relates to service with respect to an employee benefit plan, in
the best interests of the participants or beneficiaries of such
employee benefit plan; and, provided further, that, except as
provided in section (c) of this Article 10, the corporation
shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if
such person was authorized to initiate such proceeding by the
board of directors of the corporation. The right to
indemnification conferred in this Article 10 shall be a
contract right and, subject to Sections (c) and (i) of this
Article 10, shall include the right to be paid by the
corporation expenses incurred in defending any such proceeding
in advance of its final disposition. The corporation may, by
action of its board of directors, provide indemnification to
employees and agents of the corporation with the same scope and
effect as the foregoing indemnification of officers and
directors.
(b) The right to indemnification conferred in this Article 10 shall
include the right to be paid by the corporation for liabilities
and expenses incurred in connection with the settlement or
compromise of any such action, suit or proceeding, pursuant to
a consent decree or otherwise, unless a determination is made,
within thirty-five (35) days after receipt by the corporation
of a written request by the Indemnitee for indemnification,
that
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such settlement or compromise is not in the best interests of
the corporation or, to the extent such matter related to
service with respect to an employee benefit plan, that such
settlement or compromise is not in the best interests of the
participants or beneficiaries of such plan. Any such
determination shall be made (i) by the board of directors of
the corporation by a majority vote of a quorum consisting of
disinterested directors, or (ii) if such quorum is not
obtainable, by a majority of the disinterested directors then
in office. Notwithstanding the foregoing, if there are less
than two (2) disinterested directors of the corporation then in
office, the board of directors shall promptly direct that
independent legal counsel (who may be regular legal counsel to
the corporation) determine, based on facts known to such
counsel at such time, whether such Indemnitee acted in good
faith in the reasonable belief that his action was in the best
interests of the corporation or the participants or
beneficiaries of any such employee benefit plan, as the case
may be; and, in such event, indemnification shall be made to
such Indemnitee unless, within thirty-five (35) days after
receipt by the corporation of the request by such Indemnitee
for indemnification, such independent legal counsel provides in
a written opinion to the corporation that such Indemnitee did
not act in good faith in the reasonable belief that his action
was in the best interests of the corporation or the
participants or beneficiaries of any such employee benefit
plan, as the case may be.
(c) Any indemnification of a director or officer of the corporation
under this Article 10, including any advance of expenses under
Section (e) of this Article 10, shall be made promptly and, in
any event, within thirty-five (35) days, upon the written
request of the director or officer. If a determination by the
corporation that the director or officer is entitled to
indemnification pursuant to this Article 10 is required, and
the corporation fails to respond within sixty (60) days to a
written request for indemnity, the corporation shall be deemed
to have approved the request. If the corporation denies a
written request for indemnification or advancing of expenses,
in whole or in part, or if payment in full pursuant to such
request is not made within thirty-five (35) days, the right to
indemnification or advances as granted by this Article 10 shall
be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses
incurred in such action shall also be indemnified by the
corporation if such person prevails in such action. It shall be
a defense to any such action (other than an action to enforce a
claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required
undertaking, if any, has been tendered to the corporation) that
the claimant has not met the standards of conduct which make it
permissible under the General Corporation Law of the State of
Delaware for the corporation to indemnify the claimant for the
amount claimed but the burden of such defense shall be on the
corporation. Neither the failure of the corporation (including
its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the
commencement of such action that indemnification of the
claimant is proper in the circumstances because he has met the
applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor an actual
determination by the corporation (including its board of
directors, independent legal counsel, or its stockholders) that
the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that
the claimant has not met the applicable standard of conduct.
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(d) As a condition precedent to his right to be indemnified, the
Indemnitee must give the corporation notice in writing as soon
as practicable of any action, suit or proceeding involving him
for which indemnity will or could be sought. With respect to
any action, suit or proceeding of which the corporation is
notified, the corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof
at its own expense, with legal counsel reasonably acceptable to
such Indemnitee. After notice from the corporation to the
Indemnitee of its election to assume such defense, the
corporation shall not be liable to such Indemnitee for any
legal or other expenses subsequently incurred by such
Indemnitee in connection with such claim, but the fees and
expense of such counsel incurred after notice from the
corporation of its assumption of the defense thereof shall be
at the expense of the Indemnitee unless (i) the employment of
counsel by the Indemnitee has been authorized by the
corporation, (ii) counsel to the Indemnitee shall have
reasonably concluded that there may be a conflict of interest
or position on any significant issue between the corporation
and the Indemnitee in the conduct of the defense of such action
or (iii) the corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which
cases, the fees and expenses of counsel for the Indemnitee
shall be at the expense of the corporation, except as otherwise
expressly provided by this Article. The corporation shall not
be entitled to assume the defense of any claim brought by or on
behalf of the corporation or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided
for in (ii) above.
(e) Subject to paragraph 10(c) above, the right to indemnification
referred to in this Article shall include the right to be paid
by the corporation for expenses (including reasonable
attorneys' fees) incurred in defending a civil or criminal
action, suit or proceeding in advance of its final disposition,
subject to receipt of an undertaking by the Indemnitee to repay
such payment if it is ultimately determined that the Indemnitee
is not entitled to indemnification under this Article. Such
undertaking may be accepted without reference to the financial
ability of such Indemnitee to make such repayment.
Notwithstanding the foregoing, no advance shall be made by the
corporation under this paragraph (d) if a determination is
reasonably and promptly made by the board of directors by a
majority vote of a quorum consisting of disinterested directors
or, if such quorum is not obtainable, by a majority of the
disinterested directors of the corporation then in office or,
if there are not at least two disinterested directors then in
office, by independent legal counsel (who may be regular legal
counsel to the corporation) in written opinion that, based on
facts known to the board of directors or counsel at such time,
such Indemnitee did not act in good faith in the reasonable
belief that his action was in the best interests of the
corporation or the participants or beneficiaries of an employee
benefit plan of the corporation, as the case may be.
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(f) If an Indemnitee is entitled under any provision of this
Article to indemnification by the corporation of some or a
portion of the liabilities or expenses imposed upon or incurred
by such Indemnitee in the investigation, defense, appeal or
settlement of any action, suit or proceeding but not, however,
for the total amount thereof, the corporation shall
nevertheless indemnify the Indemnitee for the portion of such
liabilities or expenses to which such Indemnitee is entitled.
(g) The right to indemnification and the payment of expenses
incurred in defending any action, suit or proceeding in advance
of its final disposition conferred in this Article shall not be
exclusive of any other right which any person may have or
thereafter acquire under any statute, provision of the articles
of incorporation, by-laws, agreement, vote of stockholders or
board of directors or otherwise. Without limiting the
generality of the foregoing, the corporation, acting through
its board of directors, may enter into agreements with any
director or employee of the corporation providing for
indemnification rights equivalent to or greater than the
indemnification rights set forth in this Article.
(h) The corporation may purchase and maintain insurance, at its
expense, to protect itself and any director or employee of the
corporation or another organization or employee benefit plan
against any expense or liability incurred by him or it in any
such capacity, or arising out of the status as such.
(i) The corporation's obligation to provide indemnification under
this Article shall be offset to the extent of any other source
of indemnification or any otherwise applicable insurance
coverage under a policy maintained by the corporation or any
other person.
(j) Without the consent of a person entitled to the indemnification
and other rights provided in this Article, no amendment
modifying or terminating such rights shall adversely affect
such person's rights under this Article with respect to the
period prior to such amendment.
(k) If this Article or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each Indemnitee as to
any liabilities and expenses with respect to any action, suit
or proceeding to the full extent permitted by any applicable
portion of this Article that shall not have been invalidated
and to the full extent permitted by applicable law.
(l) As used in this Article, the terms "director," "officer,"
"employee," "agent," and "person" include their respective
successors, heirs, executors, administrators and legal
representatives and an "interested" director is one against
whom in such capacity the proceedings in question or another
proceeding on the same or similar grounds is then pending.
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11. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of
incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
12. The incorporation of Fuel Tech, Inc. in Delaware shall be
effective as of 5:00p.m. Eastern Time on September 30, 2006.
THE UNDERSIGNED duly authorized incorporator of the corporation does
hereby set his hand this 25th day of September, 2006.
/s/ Charles W. Grinnell
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Charles W. Grinnell, Incorporator
Fuel Tech, Inc.
Financial Centre
695 East Main Street
Stamford, Connecticut 06901
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