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Assignment and Assumption
Assignment and Assumption (5K)
Doc #143933: Click preview link for longer preview.
ASSIGNMENT AND ASSUMPTION
-------------------------
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made and entered
into by and between Norit America Inc., having its principal place of business
at 5775 Peachtree Dunwoody Road, Suite C - 250, Atlanta, Georgia 30342
(hereinafter referred to as "Norit"), Earth Sciences, Inc. and its wholly-owned
subsidiary, ADA Environmental Solutions LLC, having their principal places of
business at 8100 South Park Way, Unit B, Littleton, Colorado 80120 (hereinafter
referred to as "ESI" and "ADA", respectively).
WHEREAS, Norit, ESI and ADA have entered into a Market Development Agreement
(the "MDA") and pursuant to the MDA have been collaborating to develop the
market for the use of powdered activated carbon for the reduction of mercury
emissions by North American coal-fired utilities and,
WHEREAS, ESI has authorized the spin-off of ADA to its shareholder (the
"Spin-Off") to create a separate company to pursue the development and marketing
of environmental technologies including activities under the MDA and
WHEREAS, ESI and ADA are desirous of ESI assigning to ADA and ADA assuming all
of ESI's rights and obligations under the MDA.
NOW, THEREFORE, in consideration of the premises, the mutual promises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
143933
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ADA-ES
As referenced in this Assignment and Assumption:
ADA-ES, – follows:
1. Assignment of ESI Rights to ADA: ESI, subject only to the distribution of
ADA-ES, Inc. stock to the shareholders of ESI, assigns to ADA all of its right,
dt 53555
;
Earth Sciences
As referenced in this Assignment and Assumption:
Earth Sciences, – 5775 Peachtree Dunwoody Road, Suite C - 250, Atlanta, Georgia 30342
(hereinafter referred to as "Norit"), Earth Sciences, Inc. and its wholly-owned
subsidiary, ADA Environmental Solutions LLC, having their principal places
Earth Sciences, – could not
have otherwise done under the MDA.
Consented to:
"Norit" "ESI"
Norit America Inc. Earth Sciences, Inc.
By: David A. Perry By: Mark H. McKinnies
------------------ ---------------------
Title: President Title: President
---------------- ----------------
Date:
dt 21727
;
Earth Sciences
As referenced in this Assignment and Assumption:
Earth Sciences, – 5775 Peachtree Dunwoody Road, Suite C - 250, Atlanta, Georgia 30342
(hereinafter referred to as "Norit"), Earth Sciences, Inc. and its wholly-owned
subsidiary, ADA Environmental Solutions LLC, having their principal places
Earth Sciences, – could not
have otherwise done under the MDA.
Consented to:
"Norit" "ESI"
Norit America Inc. Earth Sciences, Inc.
By: David A. Perry By: Mark H. McKinnies
------------------ ---------------------
Title: President Title: President
---------------- ----------------
Date:
dt 21735
;
| Norit America Inc.;
ADA Environmental Solutions LLC
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Assignment and Assumption Agreement
Assignment and Assumption Agreement (4K)
Doc #144315: Click preview link for longer preview.
ASSIGNMENT AND ASSUMPTION
-------------------------
THIS ASSIGNMENT, ASSUMTION AND RELEASE AGREEMENT ("Agreement") is made and
entered into by and between Norit America Inc., having its principal place of
business at 5775 Peachtree Dunwoody Road, Suite C - 250, Atlanta, Georgia 30342
(hereinafter referred to as "Norit"), Earth Sciences, Inc. and its wholly-owned
subsidiary, ADA Environmental Solutions LLC, having their principal places of
business at 8100 South Park Way, Unit B, Littleton, Colorado 80120 (hereinafter
referred to as "ESI" and "ADA", respectively).
WHEREAS, Norit, ESI and ADA have entered into a Market Development Agreement
(the "MDA") and pursuant to the MDA have been collaborating to develop the
market for the use of powdered activated carbon for the reduction of mercury
emissions by North American coal-fired utilities and,
WHEREAS, ESI has authorized the spin-off of ADA to its shareholder (the
"Spin-Off") to create a separate company to pursue the development and marketing
of environmental technologies including activities under the MDA and
WHEREAS, ESI and ADA are desirous of ESI assigning to ADA and ADA assuming all
of ESI's rights and obligations under the MDA.
NOW, THEREFORE, in consideration of the premises, the mutual promises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
144315
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ADA-ES
As referenced in this Assignment and Assumption Agreement:
ADA-ES, – follows:
1. Assignment of ESI Rights to ADA: ESI, subject only to the distribution of
ADA-ES, Inc. stock to the shareholders of ESI, assigns to ADA all of its right,
dt 21385
;
Earth Sciences
As referenced in this Assignment and Assumption Agreement:
Earth Sciences, – 5775 Peachtree Dunwoody Road, Suite C - 250, Atlanta, Georgia 30342
(hereinafter referred to as "Norit"), Earth Sciences, Inc. and its wholly-owned
subsidiary, ADA Environmental Solutions LLC, having their principal places
Earth Sciences, – could not
have otherwise done under the MDA.
Consented to:
"Norit" "ESI"
Norit America Inc. Earth Sciences, Inc.
By:___________________________ By:___________________________
Title:________________________ Title:_________________________
Date:_________________________ Date:_________________________
"ADA"
dt 21729
;
Earth Sciences
As referenced in this Assignment and Assumption Agreement:
Earth Sciences, – 5775 Peachtree Dunwoody Road, Suite C - 250, Atlanta, Georgia 30342
(hereinafter referred to as "Norit"), Earth Sciences, Inc. and its wholly-owned
subsidiary, ADA Environmental Solutions LLC, having their principal places
Earth Sciences, – could not
have otherwise done under the MDA.
Consented to:
"Norit" "ESI"
Norit America Inc. Earth Sciences, Inc.
By:___________________________ By:___________________________
Title:________________________ Title:_________________________
Date:_________________________ Date:_________________________
"ADA"
dt 21737
;
| Norit America Inc.;
ADA Environmental Solutions LLC
|
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Assumption and Release Agreement
Assumption and Release Agreement (28K)
Doc #160913: Click preview link for longer preview.
ASSUMPTION AND RELEASE AGREEMENT
THIS ASSUMPTION AND RELEASE AGREEMENT ("Agreement") is dated as of August
22, 2003 by and among EARTH SCIENCES, INC., a Colorado corporation ("Original
Borrower"), ADA-ES, INC., a Colorado corporation ("Assuming Borrower") and
TECTONIC CONSTRUCTION CO., a Colorado corporation (the "Lender").
RECITALS
A. Lender advanced funds (the "Loans") to Original Borrower in the
aggregate principal amount of US $1,250,000.00 currently evidenced by a
convertible debenture in the amount of $1,000,000.00 and a promissory note in
the amount of $250,000.00.
B. Original Borrower has now elected to separate its operations into two
separate businesses through a spin-off of Assuming Borrower to the existing
shareholders of Original Borrower (the "Spin-Off"). Pursuant to the plans for
the Spin-Off, Original Borrower and Assuming Borrower have requested that
Assuming Borrower be allowed to fully assume all the obligations of Original
Borrower with respect to the Loans and other agreements and instruments relating
thereto.
C. The parties are willing to agree to the substitution of Assuming
Borrower for the Original Borrower, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the following mutual agreements and
other valuable consideration, the receipt and sufficiency of which are
acknowledged and intending to be legally bound, the Parties agree as follows:
1. Incorporation of Recitals and Exhibits. The Recitals are incorporated as
part of this Agreement, and the Parties agree that the above Recitals are
accurate.
2. Acknowledgment of the Spin-Off. Original Borrower, Assuming Borrower and
Lender each acknowledges that concurrently herewith, Original Borrower will
separate its environmental technology and specialty chemical business from its
mineral property development business by distributing one (1) share of the
common stock ("Common Stock") of Assuming Borrower, a wholly-owned subsidiary of
Original Borrower, for every ten (10) shares of the common stock of Original
Borrower, thereby creating two independent public companies.
3. Conversion of Common Stock Following Spin-Off. Following the Spin-Off,
Lender, and pursuant to the terms of the Note and the Debenture (as such terms
are defined below) Lender shall be entitled, at any time up to and including the
respective maturity dates of the Debenture and the Note, to convert up to the
entire outstanding principal amounts on the Debenture and the Note into shares
of Common Stock of the Assuming Borrower at a conversion price for each share of
the Common Stock of the lesser of $2.10 or the average trading price per share
of Common Stock on the conversion date. Nevertheless, the aggregate combined
number of shares of Common Stock into which this Promissory Note and the
Debenture may be converted shall not exceed 100,000. Such conversion shall be
effectuated in accordance with the terms and conditions of the Debenture and the
Note.
{PAGE}
4. Transaction Documents. In connection with the making of the Loans by
Lender, Original Borrower, and in some cases, Lender have executed or caused to
be filed the following documents (collectively, the "Loan Documents"):
(a) Earth Sciences, Inc. Amended and Restated 10% Convertible Debenture
No. 1 dated September 8, 2000 in the face amount of US $1,000,000.00 (the
"Debenture") executed by Original Borrower in favor of Lender, as holder.
(b) Earth Sciences, Inc. 10% Convertible Debenture No. 1 dated June 12,
1997 in the face amount of US $1,000,000.00 executed by Original Borrower in
favor of Lender, as holder.
(c) Amended and Restated Promissory Note dated September 8, 2000 in the
face amount of $250,000.00 (the "Note") executed by original Borrower and
payable to Lender.
(d) Promissory Note dated May 20, 1998 in the face amount of $250,000.00
executed by original Borrower and payable to Lender.
(e) Security Agreement dated June 12, 1997 executed by Original
Borrower, as Debtor and Lender, as Secured Party.
(f) Deed of Trust, Security Agreement, Financing Statement and
Assignment of Rents and Revenues dated June 12, 1997 executed by Original
Borrower for the benefit of Lender and recorded with the Clerk and Recorder of
Costilla County, Colorado on June 19, 1007 at book 349, Page 590, Reception
Number 209825.
(g) Uniform Commercial Code Financing Statement (Form UCC-1), in which
Original Borrower was the debtor and Lender was the secured party, that was
filed on June 13, 1997 in the office of the Secretary of State of Colorado as
File No. 19972049113.
(h) Uniform Commercial Code Financing Statement (Form UCC-1), in which
Original Borrower was the debtor and Lender was the secured party, that was
filed on July 19, 2001 in the office of the Secretary of State of Colorado as
File No. 20012057100.
(i) Security Agreement Registration registered on May 29, 1997 in the
Personal Property Registry in Edmonton, Alberta at Registration Number
97052908486, in which Original Borrower was the debtor and Lender was the
secured party. This Registration was renewed on May 24, 2000 at Registration
Number 00052405271, and again March 13, 2003 at Registration Number 03031303450.
(j) Notice of Security Interest (Fixture or Crops) registered on June
20, 1997 with the Registrar of South Alberta Land Registration District at
Reception Number 971 177 594, in which Original Borrower was the debtor and
Lender was the secured party.
160913
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ADA-ES
As referenced in this Assumption and Release Agreement:
ada-es, – of August
22, 2003 by and among EARTH SCIENCES, INC., a Colorado corporation ("Original
Borrower"), ADA-ES, INC., a Colorado corporation ("Assuming Borrower") and
TECTONIC CONSTRUCTION CO., a Colorado corporation (the "
ada-es, – Littleton, Colorado 80120
Attention: Mark H. McKinnies
Telecopier: 303-734-0330
If to Assuming Borrower:
ADA-ES, Inc.
8100 SouthPark Way, Suite B
Littleton, Colorado 80120
Attention: Mark H. McKinnies
Telecopier:
ada-es, – Colorado corporation
By: /s/ Mark H McKinnies
-------------------------------
Name: Mark H McKinnies
Title: President
ASSUMING BORROWER:
ADA-ES, INC., a Colorado corporation
By: /s/ Michael D Durham
-------------------------------
Name: Michael D Durham
Title:
dt 284
;
Earth Sciences
As referenced in this Assumption and Release Agreement:
earth sciences, – ASSUMPTION AND RELEASE AGREEMENT ("Agreement") is dated as of August
22, 2003 by and among EARTH SCIENCES, INC., a Colorado corporation ("Original
Borrower"), ADA-ES, INC., a Colorado corporation ("Assuming Borrower")
earth sciences, – have executed or caused to
be filed the following documents (collectively, the "Loan Documents"):
(a) Earth Sciences, Inc. Amended and Restated 10% Convertible Debenture
No. 1 dated September 8, 2000 in
earth sciences, – 000.00 (the
"Debenture") executed by Original Borrower in favor of Lender, as holder.
(b) Earth Sciences, Inc. 10% Convertible Debenture No. 1 dated June 12,
1997 in the face amount
earth sciences
– documents (collectively, the
"Third Party Documents"):
(a) Security Agreement dated June 12, 1997 executed by Earth Sciences
Extraction Company, a limited partnership under the laws of Alberta, Canada
("Earth Sciences Extraction"),
"earth sciences – executed by Earth Sciences
Extraction Company, a limited partnership under the laws of Alberta, Canada
("Earth Sciences Extraction"), as Debtor, and Lender, as Secured Party.
(b) Security Agreement dated June 12, 1997
dt 285
;
|
Earth Sciences
As referenced in this Assumption and Release Agreement:
earth sciences, – ASSUMPTION AND RELEASE AGREEMENT ("Agreement") is dated as of August
22, 2003 by and among EARTH SCIENCES, INC., a Colorado corporation ("Original
Borrower"), ADA-ES, INC., a Colorado corporation ("Assuming Borrower")
earth sciences, – have executed or caused to
be filed the following documents (collectively, the "Loan Documents"):
(a) Earth Sciences, Inc. Amended and Restated 10% Convertible Debenture
No. 1 dated September 8, 2000 in
earth sciences, – 000.00 (the
"Debenture") executed by Original Borrower in favor of Lender, as holder.
(b) Earth Sciences, Inc. 10% Convertible Debenture No. 1 dated June 12,
1997 in the face amount
earth sciences
– documents (collectively, the
"Third Party Documents"):
(a) Security Agreement dated June 12, 1997 executed by Earth Sciences
Extraction Company, a limited partnership under the laws of Alberta, Canada
("Earth Sciences Extraction"),
"earth sciences – executed by Earth Sciences
Extraction Company, a limited partnership under the laws of Alberta, Canada
("Earth Sciences Extraction"), as Debtor, and Lender, as Secured Party.
(b) Security Agreement dated June 12, 1997
dt 286
;
Tectonic Construction Co.
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Code of Ethics for Senior Financial Officers
Code of Ethics for Senior Financial Officers (1K)
Doc #234501: Click preview link for longer preview.
CODE OF ETHICS FOR SENIOR FINANCIAL OFFICERS
ADA-ES, Inc. promotes ethical conduct in the practice of financial management.
Senior financial officers hold an important and elevated role in corporate
governance. They are uniquely capable and empowered to ensure that shareholders'
interests are appropriately balanced, protected and preserved.
It is the policy of ADA-ES that the principal executive officer, principal
financial officer, principal accounting officer or controller, or persons
performing similar function will adhere to the following principles governing
their professional and ethical conduct in fulfillment of their responsibilities:
1. Act with honesty and integrity, including the ethical handling of
actual or apparent conflicts of interest between personal and
professional relationships.
234501
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ADA-ES
As referenced in this Code of Ethics for Senior Financial Officers:
ADA-ES, – txt
{DESCRIPTION}CODE OF ETHICS
{TEXT}
Exhibit 14
CODE OF ETHICS FOR SENIOR FINANCIAL OFFICERS
ADA-ES, Inc. promotes ethical conduct in the practice of financial management.
Senior financial officers hold
ADA-ES – ensure that shareholders'
interests are appropriately balanced, protected and preserved.
It is the policy of ADA-ES that the principal executive officer, principal
financial officer, principal accounting officer or controller, or persons
ADA-ES, – public
communications.
3. Comply with the laws of federal, state, and local governments
applicable to ADA-ES, and the rules and regulations of regulatory
agencies.
4. Promptly report violations of this
ADA-ES – rules and regulations of regulatory
agencies.
4. Promptly report violations of this code to the ADA-ES Audit Committee.
5. Be accountable for promoting adherence to this code.
{/TEXT}
{/DOCUMENT}
dt 53573
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Articles of Incorporation [Amended and Restated]
Articles of Incorporation [Amended and Restated] (8K)
Doc #234538: Click preview link for longer preview.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ADA-ES, INC.
FIRST: The name of the corporation is ADA-ES, Inc.
SECOND: The corporation shall have and may exercise all of the rights,
powers and privileges now or hereafter conferred upon corporations organized
under the laws of Colorado. In addition, the corporation may do everything
necessary, suitable or proper for the accomplishment of any of its corporate
purposes. The corporation may conduct part or all of its business in any part of
Colorado, the United States or the world and may hold, purchase, mortgage, lease
and convey real and personal property in any of such places.
THIRD: (a) The aggregate number of shares which the corporation shall have
authority to issue is 100,000,000, consisting of 50,000,000 shares of common
stock and 50,000,000 shares of preferred stock. The shares of common stock shall
have unlimited voting power, subject to the voting rights of the shares of
preferred stock as established by the Board of Directors of the corporation in
accordance with these Articles of Incorporation and the Colorado Business
Corporation Act. The shares of common stock shall have the right to receive the
net assets of the corporation upon dissolution, subject to the rights of the
shares of preferred stock as established by the Board of Directors of the
corporation in accordance with these Articles of Incorporation and the Colorado
Business Corporation Act. The Board of Directors of the corporation shall have
the authority to divide the class of preferred shares into series and to fix and
determine the relative rights, preferences and limitations of the preferred
shares of any such series to the full extent permitted by the Colorado Business
Corporation Act.
(b) Each shareholder of common stock of record shall have one vote for
each share of common stock standing in his name on the books of the corporation
and entitled to vote, except that in the election of directors each shareholder
of common stock shall have as many votes for each share held by him as there are
directors to be elected and for whose election the shareholder has a right to
vote. Cumulative voting shall not be permitted in the election of directors or
otherwise.
(c) Unless otherwise ordered by a court of competent jurisdiction, at
all meetings of shareholders one-third of the shares of a voting group entitled
to vote at such meeting, represented in person or by proxy, shall constitute a
quorum of that voting group.
234538
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ADA-ES
As referenced in this Articles of Incorporation [Amended and Restated]:
ADA-ES, – DESCRIPTION}ARTICLES OF INCORPORATION
{TEXT}
EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ADA-ES, INC.
FIRST: The name of the corporation is ADA-ES, Inc.
SECOND: The corporation
ADA-ES, – RESTATED ARTICLES OF INCORPORATION
OF
ADA-ES, INC.
FIRST: The name of the corporation is ADA-ES, Inc.
SECOND: The corporation shall have and may exercise all of the rights,
powers
dt 53605
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Bylaws [Amended and Restated]
Bylaws [Amended and Restated] (78K)
Doc #234539: Click preview link for longer preview.
AMENDED AND RESTATED BYLAWS
OF
ADA-ES, INC.
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I. OFFICES.........................................................1
ARTICLE II. SHAREHOLDERS ..............................................1
Section 1. Annual Meeting ..............................................1
Section 2. Special Meetings.............................................2
Section 3. Place of Meeting.............................................2
Section 4. Notice of Meeting............................................2
Section 5. Fixing of Record Date........................................3
Section 6. Voting Lists ..............................................4
Section 7. Recognition Procedure for Beneficial Owners..................4
Section 8. Quorum and Manner of Acting ............................5
Section 9. Proxies......................................................5
Section 10. Voting of Shares.............................................6
Section 11. Corporation's Acceptance of Votes ..........................7
Section 12. Informal Action by Shareholders..............................8
Section 13. Meetings by Telecommunication................................8
ARTICLE III. BOARD OF DIRECTORS .....................................8
Section 1. General Powers ..............................................8
Section 2. Number, Qualifications and Tenure............................8
Section 3. Vacancies ..............................................9
Section 4. Regular Meetings.............................................9
Section 5. Special Meetings.............................................9
Section 6. Notice ......................................................9
Section 7. Quorum ......................................................10
Section 8. Manner of Acting.............................................10
Section 9. Compensation ..............................................10
Section 10. Presumption of Assent .....................................10
Section 11. Committees ..............................................11
Section 12. Informal Action by Directors ............................11
Section 13. Telephonic Meetings .....................................11
Section 14. Standard of Care.............................................12
ARTICLE IV. OFFICERS AND AGENTS ......................................12
Section 1. General......................................................12
Section 2. Appointment and Term of Office ............................12
Section 3. Resignation and Removal .....................................13
Section 4. Vacancies ..............................................13
{PAGE}
Section 5. President ..............................................13
Section 6. Vice Presidents..............................................14
Section 7. Secretary ..............................................14
Section 8. Treasurer ..............................................14
ARTICLE V. STOCK .......................................................15
Section 1. Certificates ............................................15
Section 2. Consideration for Shares ...................................16
Section 3. Lost Certificates............................................16
Section 4. Transfer of Shares ...................................16
Section 5. Transfer Agent, Registrars and Paying Agents.................17
ARTICLE VI. INDEMNIFICATION OF CERTAIN PERSONS .............................17
Section 1. Indemnification ............................................17
Section 2. Right to Indemnification ...................................18
Section 3. Effect of Termination of Action ..........................18
Section 4. Groups Authorized to Make Indemnification
Determination ...................................18
Section 5. Court-Ordered Indemnification ..........................19
Section 6. Advance of Expenses ...................................19
Section 7. Additional Indemnification to Certain Persons Other
Than Directors ..................................20
Section 8. Witness Expenses ..........................................20
Section 9. Report to Shareholders ...................................20
ARTICLE VII. PROVISION OF INSURANCE ......................................20
Section 1. Provision of Insurance ...................................20
ARTICLE VIII. MISCELLANEOUS ................................................21
Section 1. Seal ......................................................21
Section 2. Fiscal Year ..............................................21
Section 3. Amendments ..............................................21
Section 4. Receipt of Notices by the Corporation ...................21
Section 5. Gender ......................................................21
Section 6. Conflicts ..............................................21
Section 7. Definitions ..............................................21
{PAGE}
AMENDED AND RESTATED BYLAWS
OF
ADA-ES, INC.
ARTICLE I.
OFFICES
The principal office of the corporation shall be designated from time to
time by the corporation and may be within or outside the State of Colorado.
The corporation may have such other offices, either within or outside the
State of Colorado, as the board of directors may designate or as the business of
the corporation may require from time to time.
The registered office of the corporation required by the Colorado Business
Corporation Act to be maintained in Colorado may be, but need not be, identical
with the principal office, and the address of the registered office may be
changed from time to time by the board of directors.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall be
held each year on a date and at a time fixed by the board of directors of the
corporation (or by the president in the absence of action by the board of
directors), for the purpose of electing directors and for the transaction of
such other business as may come before the meeting. If the election of directors
is not held on the day fixed as provided herein for any annual meeting of the
shareholders, or any adjournment thereof, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as it may conveniently be held.
A shareholder may apply to the district court in the county in Colorado
where the corporation's principal office is located or, if the corporation has
no principal office in Colorado, to the district court of the county in which
the corporation's registered office is located to seek an order that a
shareholder meeting be held (i) if an annual meeting was not held within six
months after the close of the corporation's most recently ended fiscal year or
fifteen months after its last annual meeting, whichever is earlier, or (ii) if
the shareholder participated in a proper call of or proper demand for a special
meeting and notice of the special meeting was not given within thirty days after
the date of the call or the date the last of the demands necessary to require
calling of the meeting was received by the corporation pursuant to C.R.S. ss.
7-107-102(1)(b), or the special meeting was not held in accordance with the
notice.
Section 2. Special Meetings. Unless otherwise prescribed by statute,
special meetings of the shareholders may be called for any purpose by the
president or by the board of directors. The president shall call a special
2
{PAGE}
meeting of the shareholders if the corporation receives one or more written
demands for the meeting, stating the purpose or purposes for which it is to be
held, signed and dated by holders of shares representing at least ten percent of
all the votes entitled to be cast on any issue proposed to be considered at the
meeting.
Section 3. Place of Meeting. The board of directors may designate any
place, either within or outside Colorado, as the place for any annual meeting or
any special meeting called by the board of directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or outside Colorado, as the place for such meeting. If no
designation is made, or if a special meeting is called other than by the board,
the place of meeting shall be the principal office of the corporation.
Section 4. Notice of Meeting. Written notice stating the place, date, and
hour of the meeting shall be given not less than ten nor more than sixty days
before the date of the meeting, except that (i) if the number of authorized
shares is to be increased, at least thirty days' notice shall be given, or (ii)
if any other longer notice period is required by the Colorado Business
Corporation Act, such longer period of notice shall be applicable. The secretary
shall be required to give such notice only to shareholders entitled to vote at
the meeting except as otherwise required by the Colorado Business Corporation
Act.
Notice of a special meeting shall include a description of the purpose or
purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to (i) an amendment to the articles of
incorporation of the corporation, (ii) a merger or share exchange in which the
corporation is party and, with respect to a share exchange, in which the
corporation's shares will be acquired, (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity which
this corporation controls, in each case with or without the goodwill, (iv) a
dissolution of the corporation, or (v) any other purpose for which a statement
of purpose is required by the Colorado Business Corporation Act. Notice shall be
given personally or by mail, private carrier, telegraph, teletype,
electronically transmitted facsimile or other form of wire or wireless
communication by or at the direction of the president, the secretary, or the
officer or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed and if in a comprehensible form, such notice
shall be deemed to be given and effective when deposited in the United States
mail, addressed to the shareholder at his address as it appears in the
corporation's current record of shareholders, with postage prepaid. If notice is
given other than by mail, and provided that such notice is in a comprehensible
form, the notice is given and effective on the date actually received by the
shareholder.
If requested by the person or persons lawfully calling such meeting, the
secretary shall give notice thereof at corporate expense. No notice need be sent
to any shareholder if three successive notices mailed to the last known address
of such shareholder have been returned as undeliverable until such time as
another address for such shareholder is made known to the corporation by such
shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
234539
|
ADA-ES
As referenced in this Bylaws [Amended and Restated]:
ADA-ES, – adaex3-2.txt
{DESCRIPTION}BY-LAWS
{TEXT}
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
ADA-ES, INC.
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I. OFFICES.........................................................1
ARTICLE II. SHAREHOLDERS ..............................................1
ADA-ES, – 21
Section 6. Conflicts ..............................................21
Section 7. Definitions ..............................................21
{PAGE}
AMENDED AND RESTATED BYLAWS
OF
ADA-ES, INC.
ARTICLE I.
OFFICES
The principal office of the corporation shall be designated from
dt 53606
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| 2001 |
Convertible Debenture [Amended and Restated]
Convertible Debenture [Amended and Restated] (28K)
Doc #229031: Click preview link for longer preview.
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THE
SECURITIES MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), PURSUANT TO REGISTRATION OR AN
EXEMPTION THEREFROM.
No. ___1___ US$1,000,000
EARTH SCIENCES, INC.
AMENDED AND RESTATED
10% CONVERTIBLE DEBENTURE DUE SEPTEMBER 8, 2003
THIS DEBENTURE is one of a duly authorized issue of Debentures of Earth
Sciences, Inc., a corporation duly organized and existing under the laws of the
State of Colorado (the "Company"), designated as its 10% Convertible Debenture
Due September 8, 2003, in an aggregate principal amount not exceeding US$
1,000,000 (herein, the "Debentures"). This Debenture is issued as a replacement
of and contains modifications to the Company's previous debenture due on March
31, 2000 (as amended) in the principal amount of $1,000,000 issued to the Holder
(the "Prior Debenture"). The Holder's acceptance of this Debenture and
concurrent relinquishment and cancellation of the Prior Debenture is expressly
conditioned upon the Company's payment of all outstanding attorneys' fees,
accrued and unpaid interest, and other charges owing on the Prior Debenture as
of the date of this Debenture.
FOR VALUE RECEIVED, the Company promises to pay to Tectonic Construction
Co., the registered holder hereof (the "Holder"), the principal sum of US$
1,000,000.00, on September 8, 2003 (the "Maturity Date") together with interest
on the principal sum outstanding from time to time at the annual rate equal to
the greater of (i) the prime rate as reported by Bank One, Denver, Colorado
("Prime Rate") plus two percent (2%), or (ii) ten percent (10%), adjusted
quarterly and computed on the basis of the actual number of days elapsed in a
365-day year. All accrued interest shall be payable in arrears, and shall be due
and payable at the end of each calendar quarter or, if earlier, on the
Conversion Date (as hereinafter defined). Accrual of interest shall commence on
the date hereof and shall continue until payment in full of the principal sum
has been made or duly provided for. All accrued and unpaid interest so payable,
together with any and all other amounts payable hereunder, less any amounts
required by law to be deducted or withheld, will be paid on the Maturity Date
or, if earlier, on the Conversion Date, and shall be paid to the person in whose
name this Debenture (or one or more predecessor Debentures) is registered on the
records of the Company regarding registration and transfers of the Debentures
(the "Debenture Register") on the Conversion Date or tenth day prior to the
Maturity Date, as the case may be; provided, however, that the Company's
obligation to a transferee of this Debenture arises only if such transferee
executes a subscription agreement and investment agreement as the Company may
reasonably require. The principal of, and interest on, this Debenture are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, at the
address last appearing on the Debenture Register of the Company as designated in
writing by the Holder from time to time. The Company may prepay a portion or all
of the Debentures at any time. The Company shall provide the Holder with no less
than 30 days written notice of any prepayment. The forwarding of the Company's
check shall, subject to collection, constitute a payment of interest and
principal hereunder and shall satisfy and discharge the liability for principal
and interest on this Debenture to the extent of the sum represented by such
check. Any payments received by Holder will be applied in the following order:
(i) any collection and other costs, including, without limitation, attorneys'
fees, which the Holder may have incurred in procuring the Company's performance
hereunder, (ii) any charges assessed by the Holder, (iii) payment of the
interest then accrued and due on the unpaid interest and unpaid principal
balance of this Debenture, and (iv) principal.
The Holder may, in its sole discretion, with at least ninety (90) days'
advance written notice to the Company, demand payment of principal, which
payment shall be applied in the same order described above. The combined total
{PAGE}
amount of quarterly principal which the Holder may demand pursuant to this
Debenture and pursuant to the $250,000 Promissory Note of even date herewith
issued by the Company to the Holder (the "Note") shall not exceed $100,000 in
any quarter. The first quarterly payment of principal shall not be due earlier
than January 1, 2001, provided that the Holder demands same in writing by no
later than October 1, 2000.
This Debenture is subject to the following additional provisions:
1. This Debenture is exchangeable for an equal aggregate principal amount
of Debentures of different authorized denominations, as requested by the Holders
surrendering the same. No service charge will be made for such registration or
transfer or exchange.
2. This Debenture has been issued subject to investment representations of
the original purchaser hereof and may be transferred or exchanged only in
compliance with the Securities Act of 1933, as amended (the "Act") and the terms
of the Subscription Agreement. Prior to due presentment for transfer of this
Debenture, the Company and any agent of the Company may treat the person in
whose name this Debenture is duly registered on the Debenture Register as the
owner hereof for the purpose of receiving payment as herein provided and for all
other purposes, whether or not this Debenture be overdue, and neither the
Company nor any such agent shall be affected by notice to the contrary.
3. The Holder of this Debenture shall be entitled, at any time during the
period commencing on and after September 8, 2000 and expiring on the Maturity
Date, to convert up to the entire outstanding principal amount on this
Debentures into shares of common stock, par value $.0l per share (the "Common
Stock"), of the Company at a conversion price for each share of the Common Stock
of the lesser of $.21 or the average trading price per share of Common Stock on
the Conversion Date. Nevertheless, the aggregate combined number of shares of
Common Stock into which this Debenture and the Note may be converted shall not
exceed 1,000,000. Such conversion shall be effectuated by surrendering the
Debenture to the Company with the form of conversion notice attached hereto as
Exhibit A, executed by the Holder evidencing its intent to convert the
Debenture. The amount of accrued but unpaid interest as of the Conversion Date
shall not be subject to conversion but shall be paid in cash as of the
Conversion Date. No fraction of shares of the Common Stock or scrip representing
fractions of shares will be issued on conversion, but the number of shares of
the Common Stock issuable shall be rounded to the nearest whole share. The date
on which notice of conversion is given shall be deemed to be the date on which
the Holder has delivered this Debenture, with the conversion notice duly
executed, to the Company, or if earlier, the date set forth in such notice of
conversion if the Debenture is received by the Company within three business
days thereafter. Such date is referred to herein as the "Conversion Date."
Facsimile delivery of the conversion notice shall be accepted by the Company.
Certificates representing Common Stock upon conversion will be delivered to the
Holder within five (5) business days from the date the notice of conversion is
delivered to the Company. The Common Stock issuable upon conversion will not
have been registered under the Securities Act of 1933, and will be issued in
reliance upon exemptions from the registration requirements of the Securities
Acts of 1933, and the transfer of such Common Stock will be subject to
restrictions imposed by applicable securities laws. A legend restricting the
transfer of the Commons Stock may be placed on any Certificate representing the
Common Stock. If the Holder converts less than then entire outstanding principal
amount of this Debenture, the Company shall execute and issue to the Holder a
substitute debenture for the remaining unpaid and unconverted principal amount,
and shall deliver same to the Holder together with the stock certificate(s).
4. Any of the following shall constitute an "Event of Default":
a. The Company defaults in the payment of principal or interest on
this Debenture as and when the same is due and payable and such
default continues for five (5) business days after the receipt of
written notice that the Company is in default hereunder; or
b. Any of the representations or warranties made by the Company
herein, in the Subscription Agreement, or in any certificate or
financial or other written statements heretofore or hereafter
furnished by or on behalf of the Company in connection with the
execution and delivery of this Debenture or the Subscription Agreement
is false or misleading in any material respect at the time made; or
229031
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ADA-ES
As referenced in this Convertible Debenture [Amended and Restated]:
ADA-ES, – of entry thereof, or
j. The control of the Company, ESI Resources Limited, ES Extraction,
ADA-ES, Inc. or ADA -Environmental Solutions, LLC ("ADA ES"), is
changed by reason of merger
ADA-ES, – Common Stock;
ii. the declaration of a distribution to the Company by ADA ES or
ADA-ES, Inc.;
iii. capital expenditures in any calendar quarter exceeding
$100,000; or
iv. diminution
dt 53566
;
Earth Sciences
As referenced in this Convertible Debenture [Amended and Restated]:
EARTH SCIENCES, – THE "ACT"), PURSUANT TO REGISTRATION OR AN
EXEMPTION THEREFROM.
No. ___1___ US$1,000,000
EARTH SCIENCES, INC.
AMENDED AND RESTATED
10% CONVERTIBLE DEBENTURE DUE SEPTEMBER 8, 2003
THIS DEBENTURE is
Earth
Sciences, – SEPTEMBER 8, 2003
THIS DEBENTURE is one of a duly authorized issue of Debentures of Earth
Sciences, Inc., a corporation duly organized and existing under the laws of the
State of
Earth
Sciences, – Debenture including, without limitation, any of the following
documents: Subscription Agreement and Investment Agreement of Earth
Sciences, Inc.; Subordination Agreement among Tectonic Construction
Co., Yankee Atomic Electric Company, Vermont Yankee Nuclear
Earth Sciences – and ESI Resources Limited dated June 12, 1997, Guarantee
Agreement dated June 12, 1997 by Earth Sciences Extraction Company
("ES Extraction") in favor of Tectonic Construction Co.; and Guarantee
Agreement dated June
Earth Sciences, – the case of clause (d). All such notices
shall be addressed as follows:
To Maker:
Earth Sciences, Inc.
Attn: Mark McKinnies
8100 Southpark Way #B-2
Littleton, CO 80120
Fax: 303-
dt 56348
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Earth Sciences
As referenced in this Convertible Debenture [Amended and Restated]:
EARTH SCIENCES, – THE "ACT"), PURSUANT TO REGISTRATION OR AN
EXEMPTION THEREFROM.
No. ___1___ US$1,000,000
EARTH SCIENCES, INC.
AMENDED AND RESTATED
10% CONVERTIBLE DEBENTURE DUE SEPTEMBER 8, 2003
THIS DEBENTURE is
Earth
Sciences, – SEPTEMBER 8, 2003
THIS DEBENTURE is one of a duly authorized issue of Debentures of Earth
Sciences, Inc., a corporation duly organized and existing under the laws of the
State of
Earth
Sciences, – Debenture including, without limitation, any of the following
documents: Subscription Agreement and Investment Agreement of Earth
Sciences, Inc.; Subordination Agreement among Tectonic Construction
Co., Yankee Atomic Electric Company, Vermont Yankee Nuclear
Earth Sciences – and ESI Resources Limited dated June 12, 1997, Guarantee
Agreement dated June 12, 1997 by Earth Sciences Extraction Company
("ES Extraction") in favor of Tectonic Construction Co.; and Guarantee
Agreement dated June
Earth Sciences, – the case of clause (d). All such notices
shall be addressed as follows:
To Maker:
Earth Sciences, Inc.
Attn: Mark McKinnies
8100 Southpark Way #B-2
Littleton, CO 80120
Fax: 303-
dt 56432
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| 2004 |
Development and Field Validation Agreement
Development and Field Validation Agreement (16K)
Doc #240875: Click preview link for longer preview.
DEVELOPMENT AND FIELD VALIDATION AGREEMENT
THIS AGREEMENT (this "Agreement") is made by and between Thermo
Environmental Instruments Inc., a California corporation having a place
of business at 27 Forge Parkway, Franklin, Massachusetts 02038
("Thermo"), and ADA-ES Inc., a Colorado corporation having an office
and place of business at 8100 SouthPark Way, B, Littleton, Colorado
80120 ("ADA-ES"). Thermo and ADA-ES are sometimes hereinafter referred
to individually as a "Party" and collectively as the "Parties".
WHEREAS, Thermo designs and manufactures stack gas probes,
analyzers, calibrators and continuous emission monitoring systems; and
WHEREAS, ADA-ES makes and sells Flue Gas Mercury Control
Technology ("FGMCT") including systems for removing mercury from flue
gas ; and
WHEREAS, the Parties are interested in developing and performing
field validation tests on a Mercury CEMS (as defined below);
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 "Date of this Agreement" shall mean the date of complete execution
of this Agreement.
1.2 "Mercury CEMS" shall mean the continuous emission monitoring
system for monitoring mercury (as in stack gases) developed under the
Program, as well as the individual components comprising the monitoring
system, including but not limited to, stack probes, converter modules,
sample transport mechanisms, mercury detector modules, and mercury
calibration devices.
1.3 "FGMCT" shall mean ADA-ES' system for removing mercury from flue
gas.
1.4 "Party" shall mean Thermo or ADA-ES and "Parties" shall mean
Thermo and ADA-ES.
1.5 "Program" shall mean the project, in accordance with Section 2
and the other provisions of this Agreement, to develop a continuous
emission monitoring system for monitoring mercury in flue gas.
1.6 "Territory" shall mean North America.
2. The Program.
2.1 Promptly after the Date of this Agreement the Parties shall
commence the Program, and thereafter the Parties shall use diligent
efforts to complete the Program by June 1, 2005, the target date for
initial commercial availability of the Mercury CEMS. The employees of
each Party shall collaborate and cooperate with one another at all
times in performing the work described in this Agreement, by, without
limitation, exchanging and using materials and information and
providing all relevant data, information and results useful to the
purposes of this Agreement to each Party, without restriction, other
than as specified in this Agreement.
2.2 Under the Program:
(a) Thermo shall have principal responsibility for design of hardware,
firmware, software and overall product development management
associated with the Mercury CEMS, as well as manufacturing (including
assembly and test) of commercial versions of the Mercury CEMS ; and
(b) ADA-ES shall have principal responsibility for field validation of
the Mercury CEMS, including extended operation of the Mercury CEMS
under a variety of flue gas matrices and power generation coal sources.
Furthermore, ADA-ES will provide performance feedback and design
improvement suggestions to Thermo on a regular basis with a goal that a
commercially viable Mercury CEMS can be introduced to the market.
2.3 A preliminary set of functional specifications for the Mercury CEMS
is set forth in Exhibit A, attached to and forming an integral part of
this Agreement. If either Party requests changes to these
240875
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ADA-ES
As referenced in this Development and Field Validation Agreement:
ADA-ES – corporation having a place
of business at 27 Forge Parkway, Franklin, Massachusetts 02038
("Thermo"), and ADA-ES Inc., a Colorado corporation having an office
and place of business at 8100 SouthPark Way,
"ADA-ES" – having an office
and place of business at 8100 SouthPark Way, B, Littleton, Colorado
80120 ("ADA-ES" ). Thermo and ADA-ES are sometimes hereinafter referred
to individually as a "Party" and
ADA-ES – place of business at 8100 SouthPark Way, B, Littleton, Colorado
80120 ("ADA-ES"). Thermo and ADA-ES are sometimes hereinafter referred
to individually as a "Party" and collectively as the "Parties".
WHEREAS,
ADA-ES – designs and manufactures stack gas probes,
analyzers, calibrators and continuous emission monitoring systems; and
WHEREAS, ADA-ES makes and sells Flue Gas Mercury Control
Technology ("FGMCT") including systems for removing mercury from
ADA-ES' – sample transport mechanisms, mercury detector modules, and mercury
calibration devices.
1.3 "FGMCT" shall mean ADA-ES' system for removing mercury from flue
gas.
1.4 "Party" shall mean Thermo or
dt 67274
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| 2004 |
Directors Stock Compensation Plan [2004]
Directors Stock Compensation Plan [2004] (7K)
Doc #234499: Click preview link for longer preview.
ADA-ES, INC.
2004 Directors Stock Compensation Plan #1
ARTICLE I
Purpose of Plan
The purpose of this Plan is to compensate the outside directors of ADA-ES,
Inc. by awarding shares of the Common Stock of the corporation to such
directors for their annual service for the period from October 1, 2003
through September 30, 2004.
ARTICLE II
Definitions
2.1 "Award" means a grant to an outside director of the Corporation of a
right to be issued shares of Common Stock under this Plan.
2.2 "Board of Directors" means the board of directors of the Corporation.
2.3 "Common Stock" means the no par value common stock of the Corporation.
2.4 "Corporation" means ADA-ES, Inc., and any corporate successor
thereto (whether by merger, acquisition, consolidation, liquidation or other
reorganization) which has adopted this Plan and assumed the Corporation's
obligations hereunder.
2.5 "Date of Award" means the date on which the Board of Directors authorizes
an Award to a Participant under this Plan.
2.6 "Participant" means an outside director of the Corporation who has been
granted an Award pursuant to this Plan.
ARTICLE III
Award of Common Stock
3.1 Award of Common Stock.
On February 24, 2004, the Board of Directors, after due
consideration of the service being provided by each outside director and its
previous deliberations wherein it determined that a $5,000 per year fee was
appropriate, which amount may be paid in stock, granted Awards as follows:
234499
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ADA-ES
As referenced in this Directors Stock Compensation Plan [2004]:
ADA-ES, – {DOCUMENT}
{TYPE}EX-99
{SEQUENCE}5
{FILENAME}ex991.txt
{TEXT}
Exhibit 99.1
ADA-ES, INC.
2004 Directors Stock Compensation Plan #1
ARTICLE I
Purpose of Plan
The purpose
ADA-ES, – Purpose of Plan
The purpose of this Plan is to compensate the outside directors of ADA-ES,
Inc. by awarding shares of the Common Stock of the corporation to such
directors
ADA-ES, – Stock" means the no par value common stock of the Corporation.
2.4 "Corporation" means ADA-ES, Inc., and any corporate successor
thereto (whether by merger, acquisition, consolidation, liquidation or other
dt 53571
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| 2004 |
Distribution Agreement
Distribution Agreement (39K)
Doc #240876: Click preview link for longer preview.
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of the Effective Date
(as defined in subsection 12(d) hereof) by and between Thermo
Environmental Instruments Inc., a California corporation having an
office and place of business at 27 Forge Parkway, Franklin,
Massachusetts 02038 (hereinafter referred to as "Manufacturer"), and
ADA-ES, Inc., a Colorado corporation having an office and place of
business at 8100 SouthPark Way, B, Littleton, Colorado 80120
(hereinafter referred to as "Distributor").
WITNESSETH
WHEREAS, in connection with the development of a continuous
emission monitoring system for monitoring mercury as set forth in the
Development and Field Evaluation Agreement of even date hereof,
Manufacturer will make and sell products for continuous monitoring of
emissions of mercury, and components thereof, as set forth in Exhibit A
(hereinafter referred to as "Products"), such Exhibit A attached to and
forming an integral part of this Agreement, and which may be amended
from time to time by Manufacturer in its sole discretion;
WHEREAS, Distributor makes and sells systems for removing mercury
from flue gas streams (hereinafter referred to as Flue Gas Mercury
Control Technology or "FGMCT"); and
WHEREAS, the parties desire that Distributor purchase Products
from Manufacturer for resale with, and/or to purchasers of, FGMCT;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, and intending to be legally
bound hereby, the parties mutually agree as follows:
1. Appointment and Territory.
(a) Manufacturer hereby appoints Distributor on a non-exclusive
basis as a distributor of the Products. Distributor shall use its
reasonable commercial efforts to promote and sell the Products to the
maximum number of coal-fired utilities investing in FGMCT for mercury
removal in North America (the "Territory").
(b) Distributor shall sell Products only in conjunction with
its FGMCT and only for delivery to and use in the Territory. For
avoidance of doubt, the parties agree that the preceding sentence means
that "stand-alone" sales of Products by Distributor are prohibited.
(c) Distributor acknowledges and agrees that Manufacturer
retains the right to directly or indirectly sell Products to third
parties, including within the Territory. Manufacturer shall, however,
use reasonable commercial efforts not to interfere with or prejudice
Distributor's efforts to sell Products in the Territory as provided in
this Agreement.
(d) Distributor shall not solicit or accept orders for Products
from any prospective purchaser with a principal place of business
located outside the Territory, or for delivery and/or use outside the
Territory. If Distributor receives any such order or inquiry for
Products from a prospective purchaser, Distributor shall immediately
refer that order or inquiry to Manufacturer. Distributor shall not
deliver or tender (or cause to be delivered or tendered) any Product
outside of the Territory, or to a purchaser if Distributor knows or has
reason to believe that such purchaser intends to remove that Product
from the Territory.
2. Prices and Payment.
(a) Distributor shall order Products from Manufacturer by
submitting a written purchase order identifying the Products ordered,
requested delivery date(s) and any other information required to enable
Manufacturer to fill the order. All orders for Products are subject to
acceptance by Manufacturer's Director of Customer Service at
Manufacturer's office at 27 Forge Parkway, Franklin, Massachusetts.
Manufacturer shall have no liability to Distributor with respect to
purchase orders which are not accepted; provided, however, that
Manufacturer will not unreasonably reject any purchase order for
Products which does not require any modifications or additions in order
to meet the specifications of Distributor or its customers.
Manufacturer may reject, in its sole discretion, any order for
customized products.
(b) The prices for Products covered by a purchase order
accepted in accordance with subsection 2(a) above shall be those in
Manufacturer's published price list less a discount of twenty-five
percent (25.0 %). Manufacturer's net distributor prices are F.O.B.
Manufacturer's plant in Franklin, Massachusetts. The above discount
structure is based on minimum purchases by Distributor of ten (10)
Products per year commencing on the date of Distributor's first
purchase of a Product; if Distributor purchases less than such minimum
quantity during any year, then at the written request of Manufacturer
made within three (3) months following the end of such year, the
discount structure will be renegotiated.
Manufacturer may from time to time change the prices set forth in its
published price list, such change being effective immediately upon
Distributor's receipt of notice thereof; provided, however, that no
price change shall affect purchase orders submitted by Distributor and
accepted by Manufacturer prior to the date such price change becomes
240876
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ADA-ES
As referenced in this Distribution Agreement:
ADA-ES, – of business at 27 Forge Parkway, Franklin,
Massachusetts 02038 (hereinafter referred to as "Manufacturer"), and
ADA-ES, Inc., a Colorado corporation having an office and place of
business at 8100 SouthPark
ADA-ES
– are later
adopted by Thermo for the Mercury CEM and are distinct from trademarks
of ADA-ES
Distributor shall not at any time do or permit any act to be done
ADA-ES, – Electron Corporation
81 Wyman Street
Waltham, MA 02454-9046
Attention: General Counsel
If to Distributor: ADA-ES, Inc.
8100 SouthPark Way, B
Littleton, CO 80120
Attention: Michael D. Durham - President
Notices
ADA-ES, – party to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Distributor:
ADA-ES, Inc.
By: /s/ Michael D. Durham
Name Michael D. Durham
Title: President
Date: April
dt 67275
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| 2003 |
Distribution Agreement
Distribution Agreement (121K)
Doc #148042: Click preview link for longer preview.
THIS DISTRIBUTION AGREEMENT is made and entered into as of the 17th day of
March 2003 by Earth Sciences, Inc., a Colorado corporation ("ESI") and ADA-ES,
Inc., a Colorado corporation ("ADA-ES").
RECITALS
WHEREAS, the Board of Directors of ESI has deemed it appropriate and
advisable, to:
(a) separate and divide the existing businesses of ESI so that the
ADA-ES Business (as defined below) shall be owned directly by ADA-ES, and
(b) distribute, following such separation and division, as a dividend
to the holders of shares of common stock, $.01 par value per share, of ESI
(the "ESI Common Stock") all of the outstanding shares of common stock, no
par value, of ADA-ES (the "ADA-ES Common Stock") held by ESI;
WHEREAS, ESI and ADA-ES have determined that it is necessary and desirable
to set forth the principal corporate transactions required to effect such
separation, division and distribution and to set forth other agreements that
will govern certain other matters prior to and following such separation,
division and distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. General. Unless otherwise defined herein or unless the
context otherwise requires, the following terms will have the following meanings
(such meanings to be equally applicable to the singular and plural forms of the
terms defined).
"Action" means any action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Authority or any arbitration
tribunal.
"ADA-ES" means ADA-ES, Inc., a Colorado corporation, the ADA-ES
Subsidiaries and the corporations, partnerships, joint ventures, investments and
other entities that represent equity investments of ADA-ES or any of the ADA-ES
Subsidiaries following the consummation of the Corporate Restructuring
Transactions and the Distribution.
"ADA-ES Assets" means, collectively, all of the following rights and assets
that are owned by ESI and or any of its Subsidiaries as of the close of business
on the Distribution Date:
(i) the capital stock of the ADA-ES Subsidiaries;
(ii) all of the assets included on the ADA-ES Business Pro Forma
Balance Sheet that are owned by ESI or any of its Subsidiaries as of the
close of business on the Distribution Date;
{PAGE}
(iii) all of the assets and rights expressly allocated to ADA-ES or
any of the ADA-ES Subsidiaries under this Agreement or any of the Ancillary
Agreements; and
(iv) any other asset acquired by ESI or any of its Subsidiaries from
the date of the ADA-ES Business Pro Forma Balance Sheet to the close of
business on the Distribution Date that is owned by ESI or any of its
Subsidiaries as of the close of business on the Distribution Date and that
is of a nature or type that would have resulted in such asset being
included as an asset on the ADA-ES Business Pro Forma Balance Sheet had it
been acquired on or prior to the date of the ADA-ES Business Pro Forma
Balance Sheet, determined on a basis consistent with the determination of
the assets included on the ADA-ES Business Pro Forma Balance Sheet.
"ADA-ES Business" means the businesses that, after giving effect to the
Corporate Restructuring Transactions, are conducted by:
(i) ADA-ES and its Subsidiaries or any of the other members of the
ADA-ES Group; and
(ii) any business entity acquired or established by or for ESI or
ADA-ES or any of their Subsidiaries between the date of this Agreement and
the close of business on the Distribution Date that is engaged in, or
intends to engage in, any business that is of a type or nature that would
have resulted in such business being included either as a Subsidiary or an
asset of ADA-ES on the ADA-ES Business Pro Forma Balance Sheet had it been
acquired or established on or prior to the date of the ADA-ES Business Pro
Forma Balance Sheet, determined on a basis consistent with the
determination of the Subsidiaries and assets included on the ADA-ES
Business Pro Forma Balance Sheet.
"ADA-ES Common Shares" means the shares of ADA-ES Common Stock owned by ESI
after giving effect to the stock dividend provided for in Section 2.02 hereof.
"ADA-ES Common Stock" has the meaning ascribed to such term in the Recitals
to this Agreement.
"ADA-ES Group" means ADA-ES, the ADA-ES Subsidiaries and the corporations,
partnerships, joint ventures, investments and other entities that represent
equity investments of ADA-ES or any of the ADA-ES Subsidiaries following the
consummation of the Corporate Restructuring Transactions and the Distribution.
"ADA-ES Indemnified Parties" means:
(i) ADA-ES and each Affiliate thereof after giving effect to the
Corporate Restructuring Transactions and the Distribution; and
(ii) each of the respective past, present and future directors,
officers, employees and agents of any of the entities described in the
immediately preceding clause (i) and each of the heirs, executors,
successors and assigns of any of such directors, officers, employees and
agents.
"ADA-ES Information Statement" means the Information Statement or
Registration Statement relating to ADA-ES and the transactions contemplated
hereby to be distributed to holders of ESI Common Stock pursuant to the terms of
this Agreement.
148042
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ADA-ES
As referenced in this Distribution Agreement:
ada-es, – the 17th day of
March 2003 by Earth Sciences, Inc., a Colorado corporation ("ESI") and ADA-ES,
Inc., a Colorado corporation ("ADA-ES").
RECITALS
WHEREAS, the Board of Directors of ESI
"ada-es" – by Earth Sciences, Inc., a Colorado corporation ("ESI") and ADA-ES,
Inc., a Colorado corporation ("ADA-ES" ).
RECITALS
WHEREAS, the Board of Directors of ESI has deemed it appropriate and
advisable,
ada-es – and
advisable, to:
(a) separate and divide the existing businesses of ESI so that the
ADA-ES Business (as defined below) shall be owned directly by ADA-ES, and
(b) distribute, following
ada-es, – ESI so that the
ADA-ES Business (as defined below) shall be owned directly by ADA-ES, and
(b) distribute, following such separation and division, as a dividend
to the holders
ada-es – ESI Common Stock") all of the outstanding shares of common stock, no
par value, of ADA-ES (the "ADA-ES Common Stock") held by ESI;
WHEREAS, ESI and ADA-ES have
dt 2012
;
Earth Sciences
As referenced in this Distribution Agreement:
earth sciences, – AGREEMENT is made and entered into as of the 17th day of
March 2003 by Earth Sciences, Inc., a Colorado corporation ("ESI") and ADA-ES,
Inc., a Colorado corporation ("ADA-ES").
earth sciences, – toxic or hazardous substances or waste or the
cleanup or other remediation thereof.
"ESI" means Earth Sciences, Inc., a Colorado corporation.
"ESI Assets" means, collectively, all the rights and assets owned
earth sciences, – this Agreement to be
duly executed as of the day and year first above written.
EARTH SCIENCES, INC.
By: /s/ Mark H. McKinnies
-------------------------
Name: Mark H. McKinnies
Title: President
ADA-ES,
dt 2015
;
|
Earth Sciences
As referenced in this Distribution Agreement:
earth sciences, – AGREEMENT is made and entered into as of the 17th day of
March 2003 by Earth Sciences, Inc., a Colorado corporation ("ESI") and ADA-ES,
Inc., a Colorado corporation ("ADA-ES").
earth sci |