-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IbABHXl2eVbw8lU6OIF9YFbSaXiBS7TgIyI6TBEmAAgJSjNehb8EhgYn/2uyFSff KvMLJGVIUz3Q1vD5g8eD4g== 0000895345-04-000466.txt : 20040701 0000895345-04-000466.hdr.sgml : 20040701 20040701122609 ACCESSION NUMBER: 0000895345-04-000466 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20040701 EFFECTIVENESS DATE: 20040701 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CLEAN DIESEL TECHNOLOGIES INC CENTRAL INDEX KEY: 0000949428 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INORGANIC CHEMICALS [2810] IRS NUMBER: 061393453 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-117057 FILM NUMBER: 04893902 BUSINESS ADDRESS: STREET 1: 300 ATLANTIC ST STREET 2: STE 702 CITY: STAMFORD STATE: CT ZIP: 06901 BUSINESS PHONE: 2033277050 MAIL ADDRESS: STREET 1: 300 ATLANTIC ST STREET 2: STE 702 CITY: STAMFORD STATE: CT ZIP: 06901 S-8 1 krs8_cleandiesel.txt As filed with the Securities and Exchange Commission on July 1, 2004 Registration No. 333 - =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------------- FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ----------------------------------- CLEAN DIESEL TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) Delaware 06-1393453 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 300 Atlantic Street Suite 702 Stamford, Connecticut 06901 (Address of registrant's principal executive offices, including zip code) THE 1994 INCENTIVE PLAN OF CLEAN DIESEL TECHNOLOGIES, INC. (Full title of the plan) Charles W. Grinnell, Esq. 300 Atlantic Street Suite 702 Stamford, Connecticut 06901 (203) 327-7050 (Name, address, and telephone number of agent for service) -----------------------------------
CALCULATION OF REGISTRATION FEE ======================================================================================================================== PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE - ------------------------------------------ ---------------- ------------------- ------------------ --------------------- Common Stock, par value $.05 per share 2,587,894 $2.30 $5,955,412.60 $754.55 (the "Common Stock") shares ========================================================================================================================
(1) Includes an indeterminate number of shares of Common Stock that may be issuable by reason of stock splits, stock dividends or similar transactions in accordance with Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"). (2) The proposed maximum offering price per share and proposed maximum aggregate offering price are estimated solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(c) and (h) of the Securities Act, based upon the weighted average price of the following shares and exercise prices: (a) for shares of Common Stock subject to outstanding stock options previously granted under the 1994 Incentive Plan (the "Plan"), 321,894 shares at $2.90; 50,000 shares at $3.30; 350,000 shares at $1.65; 100,000 shares at $1.95; 40,000 shares at $2.03; 191,000 shares at $3.07; 35,000 shares at $2.91; and (b) for shares of Common Stock reserved for issuance under the Plan, 1,500,000 shares at $2.21, which is the average of the highest and lowest price per share of the Common Stock as reported by the OTC Electronic Bulletin Board and the Alternative Investment Market (AIM) of the London Stock Exchange on June 25, 2004. AIM prices reported in British pounds sterling have been converted into dollars at a foreign exchange rate of (pound)1.00 : $1.8218, the noon buying rate in effect on June 25, 2004. EXPLANATORY NOTE Clean Diesel Technologies, Inc. (the "Registrant") hereby files this Registration Statement on Form S-8 relating to its Common Stock, par value $.05 per share, issuable under the 1994 Incentive Plan of Clean Diesel Technologies, Inc., as amended (the "Plan"). This Registration Statement is filed pursuant to Instruction E to Form S-8 to register 2,587,894 additional shares of Common Stock issuable under the Registrant's Plan. INCORPORATION OF CONTENTS OF REGISTRATION STATEMENTS BY REFERENCE Pursuant to Instruction E to Form S-8, except with respect to Items 3 and 5 (which have been updated and are set forth below), the Registrant hereby incorporates by reference into this Registration Statement the contents of the Registrant's Registration Statement on Form S-8 (File No. 333-16939), the Registrant's Registration Statement on Form S-8 (File No. 333-33276) and any post-effective amendments thereto. PART I The documents containing information specified by Part I of this Registration Statement will be sent or given to participants as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "SEC") under the Securities Act. Such documents are not being filed either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The Registration Statement incorporates herein by reference the following documents which have been filed with the SEC by the Registrant: o Our Annual Report on Form 10-K filed on March 25, 2004, which document includes the Registrant's audited financial statements for the fiscal year ended December 31, 2003; and o Our Quarterly Report on Form 10-Q filed on May 11, 2004, which includes unaudited consolidated financial statements for the three-month period ended March 31, 2004. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the shares of Common Stock offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part thereof from the date of filing such documents. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Charles W. Grinnell, counsel to the Registrant who has issued an opinion as to the validity of the shares of Common Stock covered by this Registration Statement, is a director and officer of the Registrant, owns 15,204 shares of Registrant's Common Stock and holds options to purchase 193,250 shares of Common Stock covered by this Registration Statement. ITEM 8. EXHIBITS EXHIBIT NO. DESCRIPTION OF EXHIBIT - ----------- ---------------------- 4.1* Restated Certificate of Incorporation, dated as of June 18, 2004. 4.2* Bylaws, as amended through June 11, 2003. 4.3* Certificate of Elimination of Designation of Series A Convertible Preferred Stock, dated as of June 18, 2004. 4.4 1994 Incentive Plan of Clean Diesel Technologies, Inc. as amended through August 8, 1996, filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 (File No. 333-16939) and incorporated herein by reference. 4.5 Amendment of Section 5.1 of the 1994 Incentive Plan, effective June 9, 1999, filed as Exhibit 10e to Report on Form 10-K for the year ended December 31, 1999 and incorporated herein by reference. 4.6* Amendment of the 1994 Incentive Plan, effective June 11, 2003. 4.7 Form of Option Agreement under the 1994 Incentive Plan, filed as Exhibit 4.3 to the Registrant's Registration Statement on Form S-8 (File No. 333-16939) and incorporated herein by reference. 4.8* Form of Incentive Stock Option Agreement under the 1994 Incentive Plan. 4.9* Form of Non-Qualified Stock Option Agreement under the 1994 Incentive Plan. 4.10* Form of Non-Executive Director Stock Option Agreement under the 1994 Incentive Plan. 5.1* Opinion of Charles W. Grinnell, Esq. 23.1* Consent of Eisner LLP. 23.2* Consent of Ernst & Young LLP. 23.3* Consent of Charles W. Grinnell, Esq. (included in opinion filed as Exhibit 5.1). 24.0* Powers of Attorney (included on the signature page). - ---------------------- * Filed herewith. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stamford, State of Connecticut, on July 1, 2004. CLEAN DIESEL TECHNOLOGIES, INC. By: /s/ J.D. Peter-Hoblyn ------------------------------------- Jeremy D. Peter-Hoblyn Chief Executive Officer and Director POWER OF ATTORNEY WE, THE UNDERSIGNED OFFICERS AND DIRECTORS OF CLEAN DIESEL TECHNOLOGIES, INC. hereby severally constitute and appoint Jeremy D. Peter-Hoblyn, David W. Whitwell and Charles W. Grinnell, and each of them singly, our true and lawful attorneys-in-fact and agents with full power to them, and each of them singly, to sign for us and in our names and capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all pre-effective and post-effective amendments to said Registration Statement, and any and all documents in connection therewith, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing in our names and behalf in our capacities as officers and directors to enable Clean Diesel Technologies, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, and hereby ratify, approve and confirm all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
Signature Title Date --------- ----- ---- /s/ J.D. Peter-Hoblyn Chief Executive Officer and Director (principal executive July 1, 2004 - ------------------------------------ officer) Jeremy D. Peter-Hoblyn /s/ David W. Whitwell Chief Financial Officer, Vice President and Treasurer July 1, 2004 - ------------------------------------ (principal financial and accounting officer) David W. Whitwell /s/ John A. de Havilland Director July 1, 2004 - ------------------------------------ John A. de Havilland /s/ Derek R. Gray Non-Executive Chairman of the July 1, 2004 - ------------------------------------ Board of Directors and Director Derek R. Gray /s/ Charles W. Grinnell Vice President, Corporate Secretary and Director July 1, 2004 - ------------------------------------ Charles W. Grinnell /s/ James M. Valentine President, Chief Operating Officer and Director July 1, 2004 - ------------------------------------ James M. Valentine
INDEX TO EXHIBITS EXHIBIT NO. DESCRIPTION OF EXHIBIT - ----------- ---------------------- 4.1* Restated Certificate of Incorporation, dated as of June 18, 2004. 4.2* Bylaws, as amended through June 11, 2003. 4.3* Certificate of Elimination of Designation of Series A Convertible Preferred Stock, dated as of June 18, 2004. 4.4 1994 Incentive Plan of Clean Diesel Technologies, Inc. as amended through August 8, 1996, filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 (File No. 333-16939) and incorporated herein by reference. 4.5 Amendment of Section 5.1 of the 1994 Incentive Plan, effective June 9, 1999, filed as Exhibit 10e to Report on Form 10-K for the year ended December 31, 1999 and incorporated herein by reference. 4.6* Amendment of the 1994 Incentive Plan, effective June 11, 2003. 4.7 Form of Option Agreement under the 1994 Incentive Plan, filed as Exhibit 4.3 to the Registrant's Registration Statement on Form S-8 (File No. 333-16939) and incorporated herein by reference. 4.8* Form of Incentive Stock Option Agreement under the 1994 Incentive Plan. 4.9* Form of Non-Qualified Stock Option Agreement under the 1994 Incentive Plan. 4.10* Form of Non-Executive Director Stock Option Agreement under the 1994 Incentive Plan. 5.1* Opinion of Charles W. Grinnell, Esq. 23.1* Consent of Eisner LLP. 23.2* Consent of Ernst & Young LLP. 23.3* Consent of Charles W. Grinnell, Esq. (included in opinion filed as Exhibit 5.1). 24.0* Powers of Attorney (included on the signature page). - ---------------------- * Filed herewith. EX-4.1 2 cert_incorp.txt Exhibit 4.1 Restated Certificate of Incorporation Of Clean Diesel Technologies, Inc. The original certificate of incorporation of Clean Diesel Technologies, Inc. (the "corporation") was filed with the Secretary of State of Delaware on January 19, 1994. This restated certificate of incorporation of the corporation was duly adopted by the vote of the Board of Directors of the corporation in accordance with Section 245 of the Delaware General Corporation Law on June 18, 2004 without a vote of shareholders. This restated certificate of incorporation only restates and integrates and does not further amend the provisions of the corporation's certificate of incorporation as theretofore amended and supplemented and there is no discrepancy between those provisions and the provisions of this restated certificate. 1. The name of the corporation is Clean Diesel Technologies, Inc. 2. 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. 3. 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. 4. The corporation shall have authority to issue the total number of Thirty Million One Hundred Thousand (30,100,000) shares of the par value of $0.05 per share, amounting in the aggregate to One Million Five Hundred and Five Dollars ($1,505,000), and of such shares Thirty Million (30,000,000) shall be designated as common stock and One Hundred Thousand (100,000) shall be designated as preferred stock. The preferred stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized, within the limitations and restrictions set forth in this Certificate, to issue the preferred stock in one or more series and, in connection with the creation of any such series, by resolution or resolutions providing for the issue of the shares thereof, to determine and fix such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof, including without limitation, dividend rights, dividend rates, conversion rights, rights and terms of redemption (including sinking fund provisions), and the liquidation preferences of any unissued series of preferred stock and the number of shares constituting any such series; and to increase or decrease the number of shares of any series subsequent to the issue of shares of that series, but not above the total number of authorized shares of the class and not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series. In no event, however, may the Board of Directors issue preferred stock which has the effect of voting as a class during the pendency of a tender offer to purchase more than 50% of the common stock of the Company, unless the tender offeror(s) consent to such issuance. 5. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the by-laws of the corporation. 6. Elections of Directors need not be by written ballot unless the by-laws of the corporation shall so provide. 7. 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. 8. (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 8 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 8 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 8 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. 9. (a) Except as otherwise provided below, the corporation, shall, to the fullest extent indemnify each person who is, or shall have been, a director, officer, employee or agent of the corporation or who is or was a director, officer, employee or agent 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. (b) The right to indemnification conferred in this Article 9 shall include the right to be paid by the corporation for liabilities and expenses incurred in connection with the settlement of compromise of any such action, suite or proceeding, pursuant to a consent decree or otherwise, unless a determination is made, within forty-five (45) days after receipt by the corporation of a written request by the Indemnitee for indemnification, that 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 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 know to such counsel at such time, whether such Indemnitee acted in good faith in the reasonable belief that this 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 forty-five (45) days after receipt by the corporation of the request by such Indemnitee for indemnification, such independent legal counsel in a written opinion to the corporation determines 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) 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 so 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. (d) Subject to paragraph (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 my be. (e) 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, suite 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. (f) 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 of managing 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. (g) 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 in any such capacity, or arising out of the status as such. (h) 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. (i) 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. (j) 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 proceedings 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. (k) As used in this Article, the term "director" "officer" "employee" "agent" and "person" include their respective 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. 10. 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. THE UNDERSIGNED duly authorized officer of the corporation does hereby set his hand this 18th day of June 2004. /s/ C.W. Grinnell ------------------------- Charles W. Grinnell Vice President and Secretary EX-4.2 3 bylaws.txt Exhibit 4.2 Clean Diesel Technologies, Inc. A Delaware Corporation BY-LAWS As Amended Through June 11, 2003 ARTICLE I OFFICES Section 1.1. Registered Office. The Corporation's registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 1.2. Other Offices. The Corporation may also have offices at such other places within or without the State of Delaware as the Board of Directors shall determine. ARTICLE II STOCKHOLDERS Section 2.1. Place of Meeting. Meetings of stockholders may be held at such places within or without the State of Delaware as the Board of Directors shall determine. Section 2.2. Annual and Special Meetings. Annual meetings of stockholders shall be held (at dates, times, and places fixed by the Board of Directors and stated in the notice of meeting) to elect Directors and to transact such other business as may properly come before the meeting; provided, however, that the date of each such annual meeting shall be within thirteen months subsequent to the later of the date of the Corporation's incorporation or the date of the last annual meeting of stockholders. Special meetings of stockholders may be called by the President for any purpose. If directed by the Board of Directors or requested in writing by the holders of not less than 25% of the aggregate of the Corporation's then outstanding capital stock, special meetings of stockholders shall be called by the President or the Secretary. Each such stockholder request shall state the purpose of the proposed meeting. Section 2.3. The Secretary of the Corporation shall or shall cause the Corporation's Transfer Agent to prepare, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting. Such list shall be arranged in alphabetical order and shall show each stockholder's address and the number of shares registered in such stockholder's name. Such list shall be open to examination by any stockholder for any purpose germane to the meeting during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting (or, if not so specified, at the place where the meeting is to be held). The list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 2.4. Organization. The person designated by the Board of Directors (or, in the absence of such designation, the highest ranking officer of the Corporation who is present at the meeting) shall call to order meetings of stockholders and shall act as chairman of such meetings. The Secretary of the Corporation shall act as secretary of meetings of stockholders. If the Secretary of the Corporation is absent from the meeting, the secretary of the meeting shall be such person as the chairman of the meeting shall appoint. Section 2.5. Conduct of Business. The chairman of any meeting of stockholders shall determine the order of business and the procedures to be followed at the meeting, including regulation of the manner of voting and of the conduct of discussion. Section 2.6. Notice. Except as otherwise provided by law, written notice of the time, date, and place of meeting (and, in the case of a special meeting, the purpose thereof) shall be given to each stockholder not less than 10 days and not more than 60 days before the date on which the meeting is to be held. Section 2.7. Quorum. At any meeting of stockholders, the holders of record (present in person or by proxy) of a majority of the shares of capital stock entitled to vote at the meeting shall constitute a quorum for the transaction of business, except as otherwise required by law. In the absence of a quorum, the chairman or secretary of the meeting may adjourn the meeting in the manner provided in Section 2.8 hereof until a quorum is present. Section 2.8. Adjournment. Any meeting of stockholders, annual or special, may be adjourned from time to time to reconvene at the same place or another place. A determination in accordance with Article V hereof of stockholders of record with respect to a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board of Directors shall have authority to fix a new record date for the adjourned meeting. Notice need not be given of any such adjourned meeting if the date, time, and place thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than thirty days or if a new record date is fixed for the adjourned meeting, written notice of the date, time, and place of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting. At the adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 2.9. Proxies and Voting. At any meeting of stockholders, each stockholder entitled to vote may vote in person or by proxy. Each stockholder shall have one vote for each share of capital stock entitled to vote which is registered in his name on the record date for the meeting, except as otherwise provided in these By-Laws or as otherwise required by law. All voting by stockholders, except on the election of directors and except as otherwise required by law, may be by voice vote; provided, however, that upon demand therefor by a stockholder (or by his proxy) entitled to vote, a stock vote shall be taken. Each stock vote shall be taken by written ballots, each of which shall state the name of the stockholder (or proxy) voting. Each vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting. Elections of Directors shall be determined by a plurality of the votes cast; except as otherwise required by law, all other matters shall be determined by a majority of votes cast. ARTICLE III DIRECTORS Section 3.1. Number, Election, Term, and Removal of Directors. Each Director shall be elected for a term of one year and until his successor is elected and qualified, except as otherwise provided in these By-Laws or as otherwise required by law. The first Board of Directors shall consist of one Director. Thereafter, the number of Directors shall be determined by the Board of Directors or by the stockholders. The Directors shall all be elected by the stockholders in accordance with Section 2.9 hereof at the annual meeting of stockholders. Vacancies and newly created directorships resulting from an increase in the number of Directors may be filled (for the unexpired term and until a successor Director is elected) by a majority of the Directors then in office (although less than a quorum), by the sole remaining Director, or by the stockholders. Any Director may be removed with or without cause by the stockholders. Section 3.2. Chairman of the Board. The Directors may elect one of their members to be Chairman of the Board of Directors. The Chairman of the Board of Directors shall be subject to the control of, and may be removed with or without cause by, the Board of Directors. The Chairman of the Board of Directors shall perform such duties as may from time to time be assigned to him by the Board of Directors. Section 3.3. Meetings. Regular meetings of the Board of Directors shall be held at such dates, times, and places as may from time to time be fixed by the Board of Directors. Notice need not be given of regular meetings of the Board of Directors. Special meetings of the Board of Directors may be held at any date, time, and place upon the call of the Chairman of the Board or the President, and shall be called by the Secretary if and as directed by one-third of the Directors then in office. Telegraphic or other written notice of the place, date, and time of each special meeting of the Board of Directors shall be given not less than two days before such meeting to each Director who shall not waive such notice. Meetings of the Board of Directors may be held without notice immediately after annual meetings of stockholders. Section 3.4. Action Without Meeting. Nothing contained in these By-Laws shall be deemed to restrict the power of the Board of Directors or of any committee of the Board of Directors to take any action without a meeting. Section 3.5. Telephonic Meetings. Nothing contained in these By-Laws shall be deemed to restrict the power of members of the Board of Directors, or of any committee of the Board of Directors to participate in meetings of the Board of Directors (or of such committees) by means of conference telephone or similar communications equipment by means of which all persons participating in such meeting can hear each other. Section 3.6. Quorum; Act of the Board of Directors. One-half of the total number of Directors shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board of Directors, a majority of the Directors present may adjourn the meeting to another place, date, and time without further notice or waiver. Except as otherwise provided by law, by the Certificate of Incorporation, by these By-Laws, or by any binding contract or agreement to which the Corporation is a party, 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. Section 3.7. Committees of the Board of Directors. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may designate one or more committees (including, without limitation, an Executive Committee) to have and to exercise such power and authority as the Board of Directors shall specify. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting may (whether or not he or they constitute a quorum) unanimously appoint another Director to act at the meeting in place of the absent or disqualified committee member. Each committee may fix procedural rules for meeting and for conducting its business and shall act in accordance therewith, except as otherwise provided in these By-Laws or as otherwise required by law. Adequate provision shall be made for notice to committee members of all committee meetings. One-half of the members of each committee shall constitute a quorum (unless the committee shall consist of one member, in which event one member shall constitute a quorum). All matters shall be determined by a majority vote of the committee members present at the committee meeting. Section 3.8. Minutes of Meetings of Committees. Each committee of the Board of Directors shall keep minutes of its meetings and shall report the same when and as required by the Board of directors. Section 3.9. Compensation of Directors. Pursuant to resolution of the Board of Directors, Directors may be paid their expenses of attendance at meetings on the Board of Directors and may also be paid either a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as a Director. Pursuant to resolution of the Board of Directors, members of committees of the Board of Directors may be allowed like compensation for attending meetings of committees of the Board of Directors. No payment referred to in this Section 3.9 shall preclude any Director from serving the Corporation in any other capacity or from receiving compensation therefor. ARTICLE IV OFFICERS Section 4.1. General. The Corporation's officers shall consist of a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers (which may include one or more Assistant Secretaries and Assistant Treasurers) with such titles and duties as the Board of Directors shall determine. Any number of offices may be held by the same person. Each officer shall be elected by the Board of Directors, shall be subject to supervision and direction by the Board of Directors, shall serve at the pleasure of the Board of directors, and shall hold office for the term prescribed by the Board of Directors. The salaries of all officers shall be fixed by the Board of Directors. The authority, duties, or responsibilities of any officer may be suspended by the Board of Directors with or without cause. Any officer may be removed at any time by the Board of Directors with or without cause. Section 4.2. The Chief Executive Officer. The Chief Executive Officer shall be the Corporation's chief executive officer. Subject to the provisions of these By-Laws and to the direction of the Board of Directors, the Chief Executive Officer shall have responsibility for general management and control of the Corporation's affairs and business and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to him by the Board of Directors. The Chief Executive Officer shall have power to sign all stock certificates, contracts, and other authorized instruments of the Corporation. The Chief Executive Officer shall have general supervision and direction of the Corporation's other officers and agents. Section 4.3. The President. The President shall be responsible for the day to day operations of the Corporation as may be delegated to the President by the Chief Executive Officer from time to time and, if the Chief Executive Officer shall be absent or unable to act, the President shall act in the stead of the Chief Executive Officer. Section 4.4. The Vice Presidents. In the President's absence (or in the event of his inability or refusal to act), the Vice President (or if there be more than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or in the absence of such designation, then in the order of their election) starting with the first to be elected, shall perform all duties of the President. When so acting, such Vice President shall have all powers of, and be subject to all restrictions upon, the President. The Vice President(s) shall perform such other duties, and shall have such other powers, as the Board of Directors shall prescribe. Section 4.5. The Secretary; Assistant Secretaries. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders, and shall record the proceedings of such meetings in a book or books to be kept for that purpose. If so directed by the Board of Directors, the Secretary shall perform similar duties with respect to meetings of committees of the Board of Directors. The Secretary shall give (or cause to be given) notice of all meetings of stockholders and of all special meetings of the board of directors. The Secretary shall have custody of the Corporation's seal and he (or any Assistant Secretary) shall have authority to affix such seal to any appropriate instrument. When so affixed, such seal may be attested by the Secretary's (or such Assistant Secretary's) signature. The Board of Directors may give general authority to any other officer to affix the Corporation's seal and to attest such affixation by such other officer's signature. In the Secretary's absence (or in the event of his inability or refusal to act), the Assistant Secretary (or if there shall be more than one Assistant Secretary, the Assistant Secretaries in the order designated by the Board of Directors, or in the absence of such designation, then in the order of their election, starting with the first to be elected) shall have all powers of, and be subject to all restrictions upon, the Secretary. The Secretary and the Assistant Secretary (or Assistant Secretaries) shall perform such other duties, and shall have such other powers, as the Board of Directors shall prescribe with respect to each such office. Section 4.6. The Treasurer; Assistant Treasurers. The Treasurer shall have custody of the Corporation's monies and securities, shall keep regular books of account, and shall deposit all of the Corporation's monies and other valuable effects in the name of (and to the credit of) the corporation in one or more depositories designated by the Board of Directors. The Treasurer shall disburse the Corporation's funds as directed by the Board of Directors and shall take vouchers for such disbursements. The Treasurer shall render to the Board of Directors at its regular meetings (or when otherwise directed by the Board of Directors) an account of his transactions as Treasurer and of the Corporation's financial condition. In the absence of the Treasurer (or in the event of his inability or refusal to act), the Assistant Treasurer (or if there shall be more than one Assistant Treasurer, the Assistant Treasurers in the order designated by the Board of Directors, or in the absence of such designation, then in the order of their election, starting with the first to be elected) shall have all powers of, and be subject to all restrictions upon, the Treasurer. The Treasurer and the Assistant Treasurer (or Assistant Treasurers) shall perform such other duties, and shall have such other powers, as the Board of Directors shall prescribe with respect to each such office. Section 4.7. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any other provision of these By-Laws. Section 4.8. Facsimile Signatures of Officers. Facsimile signatures of any officer may be used whenever authorized by these By-Laws or by the Board of Directors. Section 4.9. Action with Respect to Securities of Other Entities. Unless otherwise prescribed by the Board of Directors, the Chief Executive Officer, the President or Secretary (or any other officer designated by the Chief Executive Officer to act in their stead) shall have power and authority on the Corporation's behalf to attend (and to act and vote at) meetings of holders of securities of any entity in which the Corporation shall own or hold securities. At such meetings, the Chief Executive Officer, the President, Secretary or Chief Executive Officer's designee, as the case may be, shall possess (and may exercise) all rights and powers incident to the ownership or holding of such securities which the Corporation might have possessed and exercised. The Chief Executive Officer, the President, the Secretary or the Chief Executive Officer's designee may execute and deliver on the Corporation's behalf powers of attorney, proxies, consents, waivers, and other instruments relating to the securities owned or held by the Corporation. ARTICLE V CAPITAL STOCK Section 5.1. Stock Certificates. Certificates for shares of the Corporation's capital stock shall be in such form as shall be permitted by law and approved by the Board of Directors. 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 Chairman of the Board of Directors if one shall be incumbent) or the President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the number of shares owned by him in the corporation. If such certificate is countersigned (1) by a transfer agent other than the Corporation or its employee, or (2) by a registrar other than the Corporation or its employee, any other signatures on the certificate may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the designations, preferences and relative, participating optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificates which the Corporation shall issue to represent such class or series of stock or there shall be set forth on the face or back of the certificates which the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish, without charge to each stockholder who so requests, the designations, references and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Any restriction imposed upon the transfer of shares or registration of transfer of shares shall be noted conspicuously on the certificate representing the shares subject to such restriction. Section 5.2. Transfer of Shares. Shares of the Corporation's capital stock may be transferred on the Corporation's books only by the holder of such shares (or by such holder's authorized attorney) upon surrender to the Corporation or to the Corporation's transfer agent of the properly endorsed certificate(s) representing such shares. Section 5.3. Lost, Stolen, or Destroyed Certificates. The Board of Directors (or the Corporation's transfer agent) may authorize the issuance of a new share certificate to replace any certificate theretofore issued by the Corporation which is alleged to have been lost, stolen, or destroyed. The Board of Directors, as a condition to such issuance, may require that the owner of such lost, stolen, or destroyed certificate, or his legal representative, (i) submit to the Corporation an affidavit stating that such certificate has been lost, stolen, or destroyed, (ii) advertise the same in such manner as the Board of Directors shall require, and/or (iii) give the Corporation a bond in such sum as the Board of Directors shall require to indemnify the Corporation against any claim that may be made against the Corporation in respect of the certificate alleged to have been lost, stolen, destroyed or the certificate to be issued. Section 5.4. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed: (1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to a vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. (2) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this State, its principal place of business, or an officer of agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. (3) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when prior action by the Board of Directors is required, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. (4) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 5.5. Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on the Corporation's books as the owner of shares of capital stock to receive dividends on such shares and to vote as owner of such shares. The Corporation need not recognize any claim to (or interest in) such shares by any other person, whether or not the Corporation shall have notice thereof, except as otherwise required by law. Section 5.6. Regulations. The Board of Directors shall have power and authority to make all rules and regulations which it deems expedient concerning the issuance, transfer, registration, cancellation, and replacement of certificates representing the Corporation's capital stock. Section 5.7. United Kingdom Stock Exchanges. In connection with the trading of Shares of the Company's common stock on exchanges in the United Kingdom, the officers, agents and other person's acting on behalf of the Company shall be guided by the regulations set forth on Schedule A to these By-Laws. ARTICLE VI GENERAL PROVISIONS Section 6.1. Checks, etc. All checks, other drafts, and notes of the Corporation shall be signed by at least two of such persons as the Board of Directors shall designate. Any two of those persons designated by the Board of Directors to sign checks, other drafts and notes of the Corporation are authorized to open and jointly use such accounts with such banks or trust companies as may from time to time be required for the purposes of the Corporation. Section 6.2. Contracts. All contracts, agreements, indentures or other written commitments intended to bind the Corporation shall be signed by an officer. Section 6.3. Pro-Forma Banking and Qualification Resolutions. Resolutions from time to time necessary or appropriate for the opening or maintenance by the Corporation of any account with any bank or trust company or for the qualification of the Corporation to do business under the laws of any state shall be effective and shall be adopted in haec verba as of the date of certification thereof so long as such resolutions shall be certified by the Secretary or an Assistant Secretary of the Corporation and filed with the permanent records of the resolutions of the Directors of the Corporation. Section 6.4. Fiscal Year. The Corporation's fiscal year shall be the twelve calendar months ending December 31 in each year unless otherwise fixed by the Board of Directors. Section 6.5. Corporate Seal. The Corporation's corporate seal shall have inscribed thereon the Corporation's name, the year of its incorporation, and the words "Corporate Seal" and "Delaware". Section 6.6. Notices. Whenever any law, the Certificate of Incorporation, or these By-Laws requires that notice be given to any Director, officer, or stockholder, such notice may be given personally or in writing by mail, addressed to such Director, officer, or stockholder at his address which appears on the Corporation's records. Any notice given by mail shall be deemed to have been given when deposited in the United States mail, with postage thereon prepaid. Notice to Directors or officers may be given by telegram, cable, radiogram, or facsimile, addressed to such Director or officer at his address which appears on the Corporation's records, in which case notice shall be deemed to have been given when delivered for transmission. Section 6.7. Time Periods. Whenever these By-Laws require that an act be done or not be done a specified number of days prior to or after the occurrence of any event (or require that an act be done or not be done within a period of days prior to or after the occurrence of an event), calendar days shall be used, with the day of the doing of such act excluded and the day of the occurrence of such event included. ARTICLE VII AMENDMENTS The holders of shares of capital stock entitled at the time to vote for the election of Directors shall have power to amend or repeal these By-Laws by vote of not less than a majority of such shares. Except as otherwise provided by law, the Board of Directors shall have power to amend or repeal these By-Laws by vote of not less than a majority of the entire Board of Directors. Any by-law adopted by the Board of Directors, however, may be amended or repealed by vote of the holders of a majority of the shares of capital stock entitled at the time to vote for the election of Directors. Schedule A to the By-Laws of Clean Diesel Technologies, Inc. (a) In the event that the Company receives a Transfer Form in relation to any shares in respect of which a valid Stock Deposit Transaction has been entered into the CREST system, the officers of the Company are authorized to interpret, and are authorized to instruct any transfer agent of the Company to interpret, such a Transfer Form as an instruction to transfer the shares which are the subject of the Transfer Form not to the transferee named in the Transfer Form, but rather to the Depository, who shall, in accordance with the Deed Poll, interpret such a transfer as an instruction to issue an equivalent number of CDTI Depository Interests to the transferee specified in the Transfer Form; (b) In the event that the Company receives a Demat Form in relation to any shares in respect of which a valid Stock Deposit Transaction has been entered into the CREST system, the officers of the Company are authorized to interpret, and are authorized to instruct any transfer agent of the Company to interpret, such a Demat Form as an instruction to transfer the shares which are the subject of the Demat Form to the Depository, who shall, in accordance with the Deed Poll, interpret such a transfer as an instruction to issue an equivalent number of CDTI Depository Interests to the holder(s) of shares named in the Demat Form; (c) In the event that the Depository receives a Stock Withdrawal Instruction in relation to any CDTI Depository Interests and the Depository, by virtue of the Deed Poll, treats such stock withdrawal instruction as an instruction (without the need for any further transfer documentation to be issued) to cancel the relevant Depository Interests, the officers of the Company are authorized to interpret and are authorized to instruct any transfer agent of the Company to interpret such an instruction as an instruction to transfer the shares, to which such CDTI Depository Interests relate, to the transferee (if any) named in the Stock Withdrawal Instruction or, if no transferee is named, to the person by whom the relevant CDTI Depository Interests were held immediately prior to their cancellation; provided, in each case, that any such officer, agent or other person shall reasonably believe that the transaction so effectuated accurately reflects the intent of the holder of such securities (or beneficial interests of depository interests therein). (d) For purposes of this Schedule A, the terms identified below shall have the meaning set forth opposite each respective term. - ---------------------------------------------------------------------- CDTI Depository Interests depository interests of a particular series issued in uncertificated form from time to time by the Depository on the terms and conditions of the Deed Poll and in accordance with the Regulations (as defined in the Deed Poll), title to which is evidenced by entry on the Clean Diesel Depository Interest Register (as defined in the Deed Poll) and which represent a particular class of Company securities. - ---------------------------------------------------------------------- CREST member a person who has been admitted by CRESTCo Limited or such other person, who is for the time being the Operator of the CREST system for the purposes of the Regulations (as defined in the Deed Poll), as a system member. - ---------------------------------------------------------------------- CREST system the systems and procedures relating to the two CREST Applications Hosts at two physically remote locations; the leased line communications between the two Applications Hosts and the System Controller's room at CRESTCo offices; the CREST Courier & Sorting Service; and the System Controller's room at CRESTCo offices. - ---------------------------------------------------------------------- Demat Form the CREST Dematerialisation Request Form, in use from time to time within the CREST system for conversion of a certificated unit of a participating security held by a CREST member into uncertificated form, which has been completed with a specified number of Company securities and executed by or on behalf of the holder of such Company securities. - ---------------------------------------------------------------------- Deed Poll that certain deed poll made by the Depository on January 29, 2002 in relation to the constitution and issue of CDTI Depository Interests by the Depository. - ---------------------------------------------------------------------- Depository Capita IRG Trustees Limited and any successor depository appointed from time to time in accordance with the Deed Poll. - ---------------------------------------------------------------------- Stock Deposit Transaction a properly authenticated dematerialized instruction in respect of a transaction which enables a shareholder to change the form in which securities are held from certificated to uncertificated, either as a result of a transfer from a certificated investor to a CREST member or as a result of a member dematerializing part of his own certificated holding. - ---------------------------------------------------------------------- Stock Withdrawal a properly authenticated instruction in Transaction respect of a transaction which enables a CREST member to change the form in which securities are held from uncertificated to certificated, either as a result of a transfer to an investor who is to hold the securities in certificated form or as a result of recertificating part of his own uncertificated holding. - ---------------------------------------------------------------------- Transfer Form the CREST Transfer Form, in use from time to time within the CREST system for a transfer of a certificated unit of a participating security to a CREST member to be held by that CREST member in uncertificated form, which has been completed with a specified number of Company securities and executed by or on behalf of the holder of such Company securities. - ---------------------------------------------------------------------- EX-4.3 4 cert_elim.txt Exhibit 4.3 CERTIFICATE OF ELIMINATION OF SERIES A CONVERTIBLE PREFERRED STOCK OF CLEAN DIESEL TECHNOLOGIES, INC. a Delaware corporation Pursuant to ss. 151(g) of the General Corporation Law of the State of Delaware Pursuant to Section 151(g) of the Delaware General Corporation Law, Clean Diesel Technologies, Inc., a Delaware corporation (the "Corporation"), does hereby certify that the following resolutions were duly adopted by the Corporation's Board of Directors on June 18, 2004: Resolved, that none of the shares of preferred stock, par value $0.05, of the Corporation designated as Series A Convertible Preferred Stock pursuant to the Certificate of Designation filed by the Corporation with the Secretary of State of the State of Delaware on May 8, 1998, as amended (the "Certificate of Designation"), are outstanding and none of such shares will be issued subject to the Certificate of Designation, as amended; and further Resolved, that the officers of the Corporation are hereby authorized and directed to prepare and file with the Secretary of State of the State of Delaware a certificate pursuant to Section 151(g) of the Delaware General Corporation Law setting forth this resolution in order to eliminate from the Corporation's certificate of incorporation all matters set forth in the Certificate of Designation with respect to the Series A Convertible Preferred Stock and to do all acts and things which may be necessary or proper in their opinion to carry into effect the purposes and intent of this and the foregoing resolution. IN WITNESS WHEREOF, I have executed and subscribed this Certificate of Elimination, as of this 18th day of June, 2004. CLEAN DIESEL TECHNOLOGIES, INC. By: /s/ C.W. Grinnell ----------------------------- Name: Charles W. Grinnell Title: Vice President and Secretary EX-4.6 5 krex4-6.txt Exhibit 4.6 Amendment, effective June 11, 2003 of Clean Diesel Technologies 1994 Incentive Plan: . . . . 6.1 (a) Options shall be Non-Qualified Stock Options or Incentive Stock Options. . . . . 6.1 (h) Incentive Stock Options (i) Each Incentive Stock Option shall not have an aggregate Fair Market Value Per Share (determined for each Incentive Stock Option at its grant date) of Shares with respect to which Incentive Options are exercisable for the first time by a Participant during any calendar year (under the Plan and any other stock option plan of the Corporation or its Subsidiaries ("Other Plans")), determined in accordance with the provisions of Section 422 of the Code, which exceeds $100,000; (ii) To the extent that the aggregate Fair Market Value Per Share of stock with respect to which Incentive Stock Options granted under the Plan and any Other Plans are exercisable by a Participant for the first time during any calendar year exceeds $100,000, such Incentive Stock Options shall be treated as Non-Qualified Stock Options to the extent necessary so that such aggregate Fair Market Value per Share of Stock does not exceed $100,000. For purposes of the foregoing sentence, Incentive Stock Options shall be treated as Non-Qualified Stock Options according to the order in which they were granted such that the most recently granted Incentive Stock Options are first treated as Non-Qualified Stock Options; and (iii)Each Incentive Stock Option shall require the Participant to notify the Board or the Committee of any disposition of any Shares issued pursuant to the exercise of the Incentive Stock Option under the circumstances described in Section 421 of the Code (relating to certain disqualifying dispositions) within ten (10) days of such disposition. . . . . EX-4.8 6 incentagmt.txt Exhibit 4.8 CLEAN DIESEL TECHNOLOGIES, INC. 1994 INCENTIVE PLAN INCENTIVE STOCK OPTION AWARD AGREEMENT INCENTIVE STOCK OPTION AWARD AGREEMENT dated as of [Date] between Clean Diesel Technologies, Inc., a Delaware corporation (the "Company")of 300 Atlantic Street, Stamford Connecticut 06902 U.S.A., and [Name] (the "Participant"), an employee of the Company. WHEREAS, the Company desires to afford to the Participant an opportunity to purchase shares of the Company's Common Stock pursuant to the grant of an incentive stock option award under the Company's 1994 Incentive Plan (the "Plan") and the participant desires to obtain such opportunity; NOW THEREFORE, the parties agree, as follows: 1. Option Grant. The Company grants to the Participant as of the date first written above (the "Grant Date") the right and option pursuant to Section 422 of the Internal Revenue Code ("this Option"), to purchase [Number] (Number) shares of Common Stock of the Company, par value $0.05 per share ("the Stock") at the exercise price per share of U.S. $[price], subject, in all respects, to the terms and conditions of the Plan and to the following terms and conditions. 2. Vesting. This Option shall only be first exercisable, in whole or in part, with respect to the shares optioned, as to 33 1/3% thereof, immediately on the Grant Date, and, as to 66 2/3% and 100% thereof, after 5:00 p.m. on the day preceding the first and second anniversaries, respectively, of the Grant Date. Pursuant to and as defined in the Plan, however, this Option shall immediately vest upon a Change of Control of the Company. 3. Term and Termination. (a) The term of this Option shall be a period commencing on the Grant Date and ending at 5:00 p.m. on the date preceding the tenth anniversary thereof ("Expiration Date"). (b) Upon the termination of the Participant's status as an employee of the Company on account of: (i) reasons other than normal retirement, death, total disability and cause, such portion of this option that has not then vested shall terminate and become non-exercisable immediately but such portion of this option that has then vested shall continue and terminate and become non-exercisable at 5:00 p.m. upon the date which is ninety (90) days after such termination of the Participant's status; (ii) death, total disability or normal retirement, such portion of this option that has not then vested shall terminate immediately but such portion of this Option that has then vested may be exercised by the Participant or, pursuant to and as defined in the Plan, the Participant's Beneficiary, at any time during the period ending on the Expiration Date (provided that such option would have been able to have been exercised according to its terms absent such death, total disability or normal retirement); or (iii) cause, in which case all options granted hereunder shall terminate and be immediately nonexercisable. (c) Notwithstanding the foregoing, where termination shall not have been for cause, of which the Board shall be the sole judge, the Board may in its sole discretion permit options hereunder to be exercised by the Participant at any time during the period ending not later than the Expiration Date as the Board shall agree, provided such option would have been able to have been exercised according to its terms absent termination. (d) "Normal Retirement" shall mean resignation of the Participant's status as an employee of the Company or a subsidiary thereof on or after attaining age sixty-five (65) or such earlier age as to which the Board shall consent. "Cause" shall mean, in the sole judgement of the Board, conviction of the Participant under, or a plea of guilty by the participant to any State or Federal felony charge (or the equivalent thereof outside of the United States); any instance of fraud, embezzlement, self-dealing, insider trading or similar malfeasance with respect to the Company regardless of amount; substance or alcohol abuse; or other conduct for which dismissal has been identified in any employee handbook, or other writing, as a potential disciplinary measure. 4. Method of Exercise. This Option may be exercised only by one or more notices from time to time in writing of the Participant's intent to exercise this Award, or a portion thereof, delivered to the Secretary or the Chief Financial Officer of the Company, or their delegates, accompanied by the Participant's check or a bank check in the amount of the exercise price, or, in lieu thereof, by delivery to the Company of that number of shares of the Stock equal in value (determined on the same basis as for the grant of Awards under the Plan) to the exercise price and any required withholdings provided in Section 5 below, or by surrendering to the Company of the shares exercised so many as shall equal such value, unless the Participant has within a period of six months previously exercised a Company stock option by delivering or surrendering shares of the Stock. 5. Taxes. At the time of exercise of this Option, the Participant shall deliver to the Company, if required by the Company, a check payable to the Company equal, in the sole opinion of the Company, to the applicable national, state, provincial and local income or other taxes and other pay-roll related items legally required to be withheld by reason of such exercise. 6. Securities Laws. The Stock may only be purchased if there is with respect to the Stock a registration statement or qualification in effect under applicable U.S. or State securities laws or an exemption therefrom. 7. Transferability; Disqualifiying Dispositions. In order that this Option shall continue as an Incentive Stock Option, this Option may not be transferred otherwise than by will or the laws of descent and distribution and may not be exercised by any person other than the Participant during the Participant's lifetime. In order that shares acquired by exercise hereunder shall not be the subject of a disqualifying disposition and ineligible for the tax treatment afforded under Section 421 of the Internal Revenue Code, the Participant shall have been an employee of the Company at all times during the period beginning on the Date of Grant and ending not later than the day three months before exercise, and, (ii) the Participant shall hold such shares for a period which is at least two years from the Date of Grant and one year from the transfer of such shares to the Participant. Any transfer of such shares whatsoever by the Participant to any person, including a nominee or a brokerage account for the benefit of the Participant in the name of the Broker, prior to the expiration of the foregoing two and one year periods may be treated by the Company as a disqualifying disposition. The Participant shall notify the Board through the Secretary of any disposition whatsoever of this option within ten (10) days of such disposition. IN WITNESS WHEREOF, the Company and the Participant have each executed this Agreement, all as of the day and year first above written. Clean Diesel Technologies, Inc. By: ---------------------- ------------------------- (Vice) President [Name] EX-4.9 7 nonqualified.txt Exhibit 4.9 CLEAN DIESEL TECHNOLOGIES, INC. 1994 INCENTIVE PLAN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT NON-QUALIFIED STOCK OPTION AWARD AGREEMENT dated as of [DATE] between Clean Diesel Technologies, Inc., a Delaware corporation (the "Company")of 300 Atlantic Street, Stamford Connecticut 06901 U.S.A., and [NAME] (the "Participant"), an employee of the Company. WHEREAS, the Company desires to afford to the Participant an opportunity to purchase shares of the Company's Common Stock pursuant to the grant of a non-qualified stock option award under the Company's 1994 Incentive Plan (the "Plan"); and WHEREAS, the Participant desires to obtain such opportunity; NOW THEREFORE, the parties agree, as follows: 1. Option Grant. The Company grants to the Participant as of the date first written above (the "Grant Date") the right and non-qualified option ("this Option"), to purchase [NUMBER] shares of Common Stock of the Company, par value $0.05 per share ("the Stock") at the exercise price per share of U.S. $[PRICE], subject, in all respects, to the terms and conditions of the Plan and to the following terms and conditions. 2. Vesting. This Option shall only be first exercisable, in whole or in part, with respect to the shares optioned, as to 33 1/3% thereof, immediately on the Grant Date, and, as to 66 2/3% and 100% thereof, after 5:00 p.m. on the day preceding the first and second anniversaries, respectively, of the Grant Date. Pursuant to and as defined in the Plan, however, this Option shall immediately vest upon a Change of Control of the Company. 3. Term and Termination. (a) The term of this Option shall be a period commencing on the Grant Date and ending at 5:00 p.m. on the date preceding the tenth anniversary thereof ("Expiration Date"). Upon the termination of the Participant's status as an employee of the Company on account of: (i) reasons other than normal retirement, death, total disability and cause, such portion of this option that has not then vested shall terminate immediately but such portion of this option that has then vested shall continue and become non-exercisable immediately at 5:00 p.m. upon the date which is ninety (90) days after such termination of the Participant's status; (ii) death, total disability or normal retirement, such portion of this option that has not then vested shall terminate immediately but such portion of this Option that has then vested may be exercised by the Participant or, pursuant to and as defined in the Plan, the Participant's Beneficiary, at any time during the period ending on the Expiration Date (provided that such option would have been able to have been exercised according to its terms absent such death, total disability or normal retirement); or (iii) cause, in which case all options granted hereunder shall terminate and be immediately nonexercisable. (b) Notwithstanding the foregoing, where termination shall not have been for cause, of which the Board shall be the sole judge, the Board may in its sole discretion permit options hereunder to be exercised by the Participant at any time during the period ending not later than the Expiration Date as the Board shall agree, provided such option would have been able to have been exercised according to its terms absent termination. (c) "Normal Retirement" shall mean resignation of the Participant's status as an employee or officer of the Company or a subsidiary thereof on or after attaining age sixty-five (65) or such earlier age as to which the Board shall consent. "Cause" shall mean, in the sole judgement of the Board, conviction of the Participant under, or a plea of guilty by the participant to any State or Federal felony charge (or the equivalent thereof outside of the United States); any instance of fraud, embezzlement, self-dealing, insider trading or similar malfeasance with respect to the Company regardless of amount; substance or alcohol abuse; or other conduct for which dismissal has been identified in any written Company policy statement, as a potential disciplinary measure. "Company" shall mean a subsidiary of the Company. 4. Method of Exercise. This Option may be exercised only by one or more notices from time to time in writing of the Participant's intent to exercise this Award, or a portion thereof, delivered to the Secretary or the Chief Financial Officer of the Company, or their delegates, accompanied by the Participant's check or a bank check in the amount of the exercise price, or, in lieu thereof, by delivery to the Company of that number of shares of the Stock equal in value (determined on the same basis as for the grant of Awards under the Plan) to the exercise price and any required withholdings provided in Section 5 below, or by surrendering to the Company of the shares exercised so many as shall equal such value, unless the Participant has within a period of six months previously exercised a Company stock option by delivering or surrendering shares of the Stock. 5. Taxes. At the time of exercise of this Option, the Participant shall deliver to the Company, if required by the Company, a check payable to the Company equal, in the sole opinion of the Company, to the applicable national, state, provincial and local income or other taxes and other pay-roll related items legally required to be withheld by reason of such exercise. 6. Securities Laws. The Stock may only be purchased if there is with respect to the Stock a registration statement or qualification in effect under applicable U.S. or State securities laws or an exemption therefrom. IN WITNESS WHEREOF, the Company and the Participant have each executed this Agreement, all as of the day and year first above written. Clean Diesel Technologies, Inc. By: ---------------------- ------------------------- (Vice) President [Name] EX-4.10 8 stockopagmt.txt Exhibit 4.10 CLEAN DIESEL TECHNOLOGIES, INC. 1994 INCENTIVE PLAN - - STOCK OPTION AWARD AGREEMENT STOCK OPTION AWARD AGREEMENT dated as of [DATE] between Clean Diesel Technologies, Inc., a Delaware corporation ("the Company"), of 300 Atlantic Street, Stamford Connecticut 06901, and [NAME], a non- employee director of the Company (the "Participant"). WHEREAS, the Company desires to afford to the Participant an opportunity to purchase shares of the Company's Common Stock pursuant to the grant of a non-qualified stock option award under the Company's 1994 Incentive Plan (the "Plan")and the Participant desires to obtain such opportunity and the Participant desires to obtain such opportunity; NOW THEREFORE, the parties agree, as follows: 1. Option Grant. The Company grants to the Participant the right and stock option ("this Option"), to purchase [NUMBER] (NUMBER) shares of Common Stock of the Company, par value $.01 per share ("the Stock") at the exercise price per share of U.S. $[PRICE] per share, subject, in all respects, to the terms and conditions of the Plan and to the following terms and conditions. 2. Term. The term of this Option shall be a period ending on the tenth anniversary ("Expiration Date") of the date first set out above ("Grant Date"). 3. Vesting. This Option shall be fully and immediately exercisable ("vested") with respect to all of the shares to which it is subject. 4. Method of Exercise. This Option may be exercised only by one or more notices from time to time in writing of the Participant's intent to exercise this Award, or a portion thereof, delivered to the Secretary of the Company accompanied by the Participant's check in the amount of the exercise price, or, in lieu thereof, by delivery to the Company of that number of shares of the Stock equal in value (determined on the same basis as for the grant of Awards under the Plan) to the exercise price and any required withholdings provided in Section 5 below, or by surrendering to the Company of the shares exercised so many as shall equal such value, unless the Participant has within a period of six months previously exercised a Company stock option by delivering or surrendering shares of the Stock. In the event of the Participant's death, such portion of this option as shall remain unexercised may be exercised by the Participant's Beneficiary at any time during the period ending on the Expiration Date. 5. Taxes. At the time of exercise of this Option, the Participant shall deliver to the Company, if required by the Company, a check payable to the Company equal, in the sole opinion of the Company, to the applicable National, State or Provincial and local income or other taxes legally required to be withheld, stopped or paid by reason of such exercise. 6. Securities Laws; Transferability. The Stock may only be purchased if there is with respect to the Stock a registration statement or qualification in effect under applicable U.S. or State securities laws or an exemption therefrom. This Option may not be transferred, assigned or pledged except in accordance with the Plan. IN WITNESS WHEREOF, the Company and the Participant have each executed this Agreement, all as of the day and year first above written. CLEAN DIESEL TECHNOLOGIES, INC. By: ---------------------- ------------------------- (Vice) President [NAME] EX-5.1 9 ex5_1.txt GRINNELL OPINION Exhibit 5.1 CLEAN DIESEL TECHNOLOGIES, INC. 300 ATLANTIC STREET, STAMFORD CT 06901 - ----------------------------------------------------------------------- DIRECT LINE: 203-363-7105 FAX: 7108 July 1, 2004 To the Board of Directors Clean Diesel Technologies, Inc. Re: Registration Statement on Form S-8 ---------------------------------- Dear Sirs: I render this opinion in connection with the filing by Clean Diesel Technologies, Inc., a Delaware corporation (the "Company"), of a Registration Statement on Form S-8 for the registration under the Securities Act of 1933, as amended, of 2,587,894 shares of the Company's common stock, par $0.05 (the "Shares"), reserved for Awards to Participants in the Company's 1994 Incentive Plan. In my opinion, when Shares are issued by the Company's Transfer Agent pursuant to the terms of Awards previously granted to Participants in the Plan under the authority of the Board of Directors against payment of exercise prices or completion of services, such prices or services being in value at least equal to the par value of the Shares, the Shares will be duly authorized, validly issued and fully paid and non-assessable. I consent to the use of this opinion as Exhibit 5.1 to the Registration Statement, and to the extent relevant, also in connection with Registration Statements previously filed under Registration Nos. 333-16939 and 333-33276. /s/ C. W. Grinnell - -------------------- Charles W. Grinnell Vice President, General Counsel and Corporate Secretary EX-23.1 10 eisnerconsent.txt Exhibit 23.1 CONSENT OF REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in the Registration Statements on Forms S-8 (Registration Nos. 33-00000, 33-16939 and 33-33276) of our report dated February 18, 2004, relating to our audit of the financial statements of Clean Diesel Technologies, Inc. included in the 2003 Annual Report on Form 10-K. /s/ Eisner LLP New York, New York June 30, 2004 EX-23.2 11 ernstyoungconsent.txt Exhibit 23.2 Consent of Independent Registered Public Accounting Firm We consent to the incorporation by reference in the Registration Statements (Forms S-8 No. 33-00000, No. 33-33276 and No. 33-16939) pertaining to the 1994 Incentive Plan of Clean Diesel Technologies, Inc. and to the incorporation by reference therein of our report dated January 24, 2003, with respect to the financial statements of Clean Diesel Technologies, Inc., as of December 31, 2002, and for each of the two years in the period ended December 31, 2002 included in the Annual Report (Form 10-K) for the year ended December 31, 2003, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Stamford, Connecticut July 1, 2004 -----END PRIVACY-ENHANCED MESSAGE-----