UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-A/A
Amendment No. 1 to
Registration Statement
on Form 8-A dated May 31,
2005
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Foster Wheeler AG
(Exact Name of Registrant as
Specified in Its Charter)
Switzerland*
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98-0607469
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(State of
Incorporation or Organization)
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(I.R.S.
Employer Identification No.)
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Perryville
Corporate Park
Clinton, New Jersey
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08809-4000
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(Address of
Principal Executive Offices)
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(Zip Code)
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If this form
relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A. (c), please check the following box.
x
If this form relates to the
registration of a class of securities pursuant to Section 12(g) of
the Exchange Act and is effective pursuant to General Instruction A. (d),
please check the following box.
o
*
Maintains its registered offices at c/o Bär &
Karrer, Baarerstrasse 8, CH-6301 Zug, Switzerland, and its principal executive
offices at Perryville Corporate Park, Clinton, New Jersey 08809-4000
Securities Act registration statement file
number to which this form relates:
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N/A
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(If
applicable)
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Securities to be registered pursuant to Section 12(b) of
the Act:
Title of each class
to be so registered
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Name of each exchange on which
each class is to be registered
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Registered Shares, par
value
CHF 3.00 per share
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The NASDAQ Stock Market
LLC
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Securities to be registered pursuant to Section 12(g) of
the Act: None
EXPLANATORY NOTE
This Registration Statement
on Form 8-A/A is being filed by Foster Wheeler AG, a Swiss corporation, to
provide a description of Foster Wheeler AGs registered shares. Pursuant to the rules under the
Securities Exchange Act of 1934, as amended, Foster Wheeler AG is the successor
issuer to Foster Wheeler Ltd., a Bermuda company (Foster Wheeler-Bermuda),
whose common shares were described in the Registration Statement on Form 8-A
filed by Foster Wheeler-Bermuda with the Securities and Exchange Commission on May 31,
2005.
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 1. Description of
Registrants Securities to be Registered.
The following description of
Foster Wheelers share capital is a summary. This summary is not complete and
is subject to the complete text of Foster Wheelers articles of association and
organizational regulations, as well as Swiss corporate law.
Except as specifically noted,
Foster Wheeler, we, us and similar words in this registration statement
refer to Foster Wheeler AG.
Capital Structure
As of February 9, 2009,
we had a total share capital of CHF 379,247,742 divided into 126,415,914
registered shares, with a par value of CHF 3.00 per share.
In
addition, our articles of association authorize our board of directors to increase the share capital by up
to CHF 189,623,871 divided into 63,207,957 registered shares, par value CHF
3.00 per share, and create conditional capital of CHF 189,623,871 divided into 63,207,957
registered shares, par value CHF 3.00 per share.
Increases of Share Capital.
Under Swiss law, we may increase our share capital through an ordinary
capital increase, an authorized capital increase or a conditional capital
increase and the issue price for each share may not be less than the par value
of the newly issued share. An ordinary capital increase is for a specific
purpose and requires the approval of a majority of the shareholders, except that
increases of capital out of equity and against contribution in kind requires
approval from shareholders holding at least two-thirds of the voting rights and
a majority of the par value of the registered shares represented at a general
meeting. The amount by which the capital can be increased in an ordinary
capital increase is unlimited, under the condition that sufficient funds can be
provided to cover the capital increase. An ordinary capital increase that has
been approved by the shareholders must be executed within three months of
shareholder approval.
The shareholders can further
authorize the board of directors to increase the share capital in an amount not
to exceed 50% of the share capital registered in the commercial register for a
period of two years without further shareholder approval. To create authorized
capital, a resolution of the general meeting of the shareholders passed by at
least two-thirds of the votes and a majority of the par value of the registered
shares represented at a general meeting is required.
The requirements for a
conditional capital increase are set forth below under Conditional Share
Capital.
Authorized Share Capital
.
The board of directors is authorized to issue new registered shares at
any time during the two-year period ending on February 8, 2011, and
thereby increase the share capital, without shareholder approval, by a maximum
amount of CHF 189,623,871 divided into 63,207,957 registered shares, par value
CHF 3.00 per share. After the expiration of the initial two-year period, and
each subsequent two-year period, authorized share capital will be available to
the board of directors for issuance of additional registered shares only if the
authorization is reapproved by shareholders.
The board of directors
determines the time of the issuance, the issuance price, the manner in which
the new registered shares have to be paid in, the date from which the new
registered shares carry the right to dividends and, subject to the provisions
of our articles of association, the conditions for the exercise of the
preemptive rights with respect to the issuance and the allotment of preemptive
rights that are not exercised. The board of directors may
2
allow preemptive rights that
are not exercised to expire, or it may place such rights or registered shares,
the preemptive rights of which have not been exercised, at market conditions or
use them otherwise in our interest.
In an authorized capital
increase, our shareholders would have preemptive rights to obtain newly issued
registered shares in an amount proportional to the par value of the registered
shares they already hold. However, the board of directors may withdraw or limit
these preemptive rights in certain circumstances as set forth in our articles
of association. For further details on these circumstances, see Preemptive
Rights and Advance Subscription Rights.
Conditional Share Capital
.
Our articles of association provide for conditional capital that allows
the board of directors to authorize the issuance of additional registered
shares up to a maximum amount of CHF 189,623,871 divided into 63,207,957
registered shares, par value CHF 3.00 per share, without obtaining additional
shareholder approval. These registered shares may be issued in connection with:
·
the
exercise of conversion, exchange, option, warrant or similar rights for the
subscription of shares granted to third parties or shareholders in connection
with bonds, options, warrants or other securities newly or already issued by us
or one of our subsidiaries, or any of their respective predecessors; or
·
the
issuance of registered shares, options or other share-based awards to
directors, employees, contractors, consultants or other persons providing
services to us or one of our subsidiaries or affiliates.
Shareholders preemptive
rights are excluded with respect to any new shares issued out of conditional
share capital.
In connection with the
issuance of bonds, notes, warrants or other financial instruments or
contractual obligations convertible into or exercisable or exchangeable for our
registered shares to be issued out of conditional share capital, the board of
directors is authorized to withdraw or limit the advance subscription rights of
shareholders in certain circumstances. See Preemptive Rights and Advance
Subscription Rights below.
The advance subscription
rights of shareholders are excluded with respect to registered shares issued to
directors, employees, contractors or other persons providing services to us or
one of our subsidiaries or affiliates out of conditional share capital.
Under Swiss law, our ability
to issue warrants, options or other instruments convertible into our registered
shares is limited unless such instruments (i) are issued to directors,
employees, contractors or other persons providing services to us or one of our
subsidiaries or affiliates, (ii) are convertible debt instruments or are
issued in conjunction with debt instruments or loans or (iii) are issued
to our shareholders.
In addition, because under
Swiss law, we are not be able to issue shares below their par value,
instruments convertible into our registered shares must have an exercise or
conversion price that is greater than or equal to the par value of the
registered shares.
Other Classes or Series of Shares
.
The board of directors may not create shares with increased voting
powers. To create super-voting shares, the affirmative resolution adopted by
shareholders holding at least 66
2
/
3
% of the voting rights and a majority of the par value of the registered
shares represented at a general meeting is needed. The board of directors may
not create preferred stock without the approval of 66
2
/
3
% of the votes cast and a majority of the par value of the registered
shares represented at the general meeting of shareholders.
Preemptive Rights and Advance Subscription Rights
Under the Swiss Code of
Obligations (the Swiss Code), the prior approval of a general meeting of
shareholders is generally required to authorize, for later issuance, the
issuance of registered shares, or rights to subscribe for, or convert into,
registered shares (which rights may be connected to debt instruments or other
obligations). In addition, the existing shareholders will have preemptive
rights in relation to such registered shares or rights in proportion to the
respective par values of their holdings. The shareholders may, with the
affirmative vote of shareholders holding 66
2
/
3
% of the voting rights and a majority of the par value of the
registered shares represented at the general meeting, withdraw or limit the
preemptive rights for valid reasons (such as a merger, an acquisition or
3
any of the reasons authorizing
the board of directors to withdraw or limit the preemptive rights of shareholders
in the context of an authorized capital increase as described below).
If the general meeting of
shareholders approves the creation of authorized or conditional capital, it can
thereby also delegate the decision whether to withdraw or limit the preemptive
and advance subscription rights for valid reasons to the board of directors.
Our articles of association provide for this delegation with respect to our
authorized and conditional share capital in the circumstances described below
under Authorized Share Capital and Conditional Share Capital.
Authorized Share Capital.
The
board of directors is authorized to withdraw or limit the preemptive rights
with respect to the issuance of registered shares from authorized capital if
the issuances are made in connection with:
·
the
takeover of enterprises through the exchange of shares;
·
the
financing of the takeover of enterprises or parts thereof, or of equity
investments, or of new investment projects by us, or the refinancing of any of
the foregoing;
·
a
national or international private or public placement of shares to finance
transactions described above;
·
broadening
the shareholder constituency in certain financial or investor markets, for
purposes of the participation of strategic partners, or in connection with the
listing of new shares on domestic or foreign stock exchanges;
·
national
and international offerings of shares for the purpose of increasing the free
float or to meet applicable listing requirements;
·
an
over-allotment option being granted to one or more financial institutions in
connection with an offering of shares;
·
the
participation of members of our board of directors and employees, contractors,
consultants or other person providing services to us or a group company;
·
raising
capital in a fast and flexible manner, which would hardly be achieved without
the exclusion of the preemptive rights of the existing shareholders; or
·
the
issuance of registered shares, the issue price of which is determined by
reference to the market price.
Conditional Share Capital
. In
connection with the issuance of bonds, notes, warrants or other financial
instruments or contractual obligations convertible into or exercisable or
exchangeable for our registered shares, the preemptive rights of shareholders
are excluded and the board of directors is authorized to withdraw or limit the
advance subscription rights of shareholders with respect to registered shares
issued from our conditional share capital if the issuance (1) is for
purposes of financing or refinancing the acquisition of companies, parts of
companies or holdings, or new investments, or (2) occurs on the
international capital markets or through a private placement.
If the advance subscription
rights are to be excluded then:
·
the
respective financial instruments or contractual obligations have to be placed
at market conditions;
·
the
instruments or obligations may be converted, exercised or exchanged during a
maximum period of 20 years; and
·
the
conversion or exercise price, if any, for the registered shares to be issued
will be set with reference to the market conditions prevailing at the date on
which the instruments or obligations are issued or entered into.
4
The preemptive rights and
the advance subscription rights of shareholders are excluded with respect to
issuances of shares to directors, employees, contractors or other persons
providing services to us or one of our subsidiaries or affiliates out of
conditional share capital.
Dividends
Under
Swiss law, dividends may be paid out only if the corporation has sufficient
distributable profits from previous fiscal years, or if the corporation has
freely distributable reserves, each as will be presented on the audited annual
stand-alone statutory balance sheet. Payments out of the registered share
capital (in other words, the aggregate par value of our registered share
capital) in the form of dividends are not allowed; however, payments out of
registered share capital may be made by way of a capital reduction. See Reduction
of Share Capital for more information. Qualifying additional paid-in capital
may only be paid out as dividends to shareholders following approval by the
shareholders of a reclassification of such qualifying additional paid-in capital
as freely distributable reserves (to the extent permissible under the Swiss
Code). The affirmative vote of shareholders holding a majority of the
registered shares represented at a general meeting must approve reserve
reclassifications and distributions of dividends. The board of directors may
propose to shareholders that a dividend be paid but cannot itself authorize the
dividend. In addition, a shareholder may propose dividends without any dividend
proposal by the board. To the extent that dividends are approved by the
shareholders, they must be paid.
Under the Swiss Code, if our
general capital reserves amount to less than 20% of the share capital recorded
in the commercial register (i.e., 20% of the aggregate par value of our
registered capital), then at least 5% of our annual profit must be retained as
general reserves. The Swiss Code and our articles of association permit us to
accrue additional general reserves. In addition, we are required to create a
special reserve on our stand-alone annual statutory balance sheet in the amount
of the purchase price of registered shares we or any of our subsidiaries
repurchase, which amount may not be used for dividends or subsequent
repurchases.
Swiss companies generally
must maintain a separate company, stand-alone statutory balance sheet for the
purpose of, among other things, determining the amounts available for the
return of capital to shareholders, including by way of a distribution of
dividends. Amounts available for the return of capital as indicated on our
statutory balance sheet may be materially different from amounts reflected in
our consolidated financial statements prepared in accordance with U.S.
generally accepted accounting principals. Our auditor must confirm that a
dividend proposal made to shareholders conforms with the requirements of the
Swiss Code and our articles of association. Our articles of association provide
that dividends that have not been claimed within five years after the due date
become our property and are allocated to the general reserves.
We are required under Swiss
law to declare any dividends and other capital distributions in Swiss francs.
We intend to make any dividend payments to holders of our shares in U.S.
dollars. Mellon Investor Services, LLC will be responsible for paying the U.S.
dollars to registered holders of shares, less amounts subject to withholding
for taxes.
Repurchases of Registered Shares
The Swiss Code limits a
companys ability to hold or repurchase its own registered shares. We and our
subsidiaries may only repurchase shares if and to the extent that sufficient
freely distributable equity is available, as described above under Dividends.
The aggregate par value of all registered shares held by us and our
subsidiaries may not exceed 10% of the registered share capital. However, we
may repurchase our own registered shares beyond the statutory limit of 10%, and
the requirement for sufficient freely distributable equity will not apply, if
the shareholders have passed a resolution at a general meeting of shareholders
authorizing the board of directors to repurchase registered shares in an amount
in excess of 10% and the repurchased shares are dedicated for cancellation. Any
registered shares repurchased pursuant to such an authorization will then be
cancelled upon the approval of shareholders holding a majority of the
registered shares represented at a general meeting.
Repurchased registered
shares held by us or our subsidiaries do not carry any rights to vote at a
general meeting of shareholders but are entitled to the economic benefits
generally associated with the shares.
5
Reduction of Share Capital
Capital distributions may
also take the form of a distribution of cash or property that is based upon a reduction
of our nominal share capital recorded in the commercial register. Such a
capital reduction requires the approval of shareholders holding a majority of
the registered shares represented at the general meeting. A special audit
report must confirm that creditors claims remain fully covered despite the
reduction in the share capital recorded in the commercial register. Upon
approval by the general meeting of shareholders of the capital reduction, the
board of directors must give public notice of the capital reduction resolution
in the Swiss Official Journal of Commerce three times and notify creditors that
they may request, within two months of the third publication, satisfaction of
or security for their claims.
General Meetings of Shareholders
The general meeting of
shareholders is our supreme corporate body. Ordinary and extraordinary
shareholders meetings may be held. The following powers will be vested
exclusively in the shareholders meeting:
·
adoption
and amendment of our articles of association;
·
election
of members of the board of directors and the auditor;
·
approval
of the annual report, the stand-alone statutory financial statements and the
consolidated financial statements;
·
payments
of dividends and any other distributions of capital to shareholders;
·
granting
discharge to the members of the board of directors from liability for business
conduct during the previous fiscal year to the extent such conduct is known to
the shareholders; and
·
any
other resolutions that are submitted to a general meeting of shareholders
pursuant to law, our articles of association or by voluntary submission by the
board of directors (unless a matter is within the exclusive competence of the
board of directors pursuant to the Swiss Code).
Under the Swiss Code and our
articles of association, we must hold an annual, ordinary general meeting of
shareholders within six months after the end of our fiscal year for the
purpose, among other things, of approving the annual financial statements and
the annual report, electing directors for the class whose term has expired and
electing auditors. Under our articles of association, the invitation to general
meetings must be published in the Swiss Official Journal of Commerce at least
20 and no more than 60 calendar days prior to the relevant general meeting of
shareholders. The notice of a meeting must state the items on the agenda and
the proposals of the board of directors and of the shareholders who demanded that
a shareholders meeting be held or that an item be included on the agenda and,
in case of elections, the names of the nominated candidates. No resolutions may
be passed at a shareholders meeting concerning agenda items for which proper
notice was not given. This does not apply, however, to proposals made during a
shareholders meeting to convene an extraordinary shareholders meeting or to
initiate a special investigation. No previous notification will be required for
proposals concerning items included on the agenda or for debates as to which no
vote is taken. If provided for in the notice of meeting, a shareholder
registered in the share register with voting rights may participate in such
meeting either in person or by a third party appointed by way of a written
proxy. Beneficial owners of shares who hold through a nominee exercise
shareholders rights through such nominee.
Annual general meetings of
shareholders may be convened by the board of directors or, under certain
circumstances, by the auditor. A general meeting of shareholders can be held
anywhere.
We expect to set the record
date for each general meeting of shareholders on a date not more than 60 and
not less than 20 calendar days prior to the date of each general meeting and
announce the date of the general meeting of shareholders prior to the record
date.
An extraordinary general
meeting of our shareholders may be called upon the resolution of the board of
directors or, under certain circumstances, by the auditor. In addition, the
board of directors is required to convene an extraordinary general meeting of
shareholders if so requested by the shareholders registered in the share
register as
6
holding an aggregate of at
least 10% of the registered shares, specifying the items for the agenda and
their proposals, or if it appears from the stand-alone annual statutory balance
sheet that half of the companys share capital and reserves are not covered by
the companys assets. In the latter case, the board of directors must
immediately convene an extraordinary general meeting of shareholders and
propose financial restructuring measures.
Under our articles of
association, a shareholder may submit a proposal for consideration by the
shareholders at any annual meeting by giving written notice of such intent in
writing and received by us not less than 45 calendar days in advance of the
anniversary date of the proxy statement related to shareholders in connection
with the previous years annual general meeting.
The board of directors or
chairman of the board of directors may postpone a shareholders meeting,
provided that notice of postponement is given to each shareholder before the
time for such meeting. A new notice is then required to hold the postponed
meeting. Under the Swiss Code, a general meeting of shareholders for which a
notice of meeting has been duly published may not be adjourned without
publishing a new notice of meeting.
Shareholders registered with
voting rights in the share register may, at a general meeting, raise
counterproposals related to any item on the agenda. However, except as required
by law, no resolution of the shareholders may be passed on items proposed
without notice at a general meeting and having no bearing on any of the
proposed items of the agenda.
Our annual report and
auditors report must be made available for inspection by the shareholders at
our place of incorporation no later than 20 days prior to the meeting. The annual
report will include our financial statements (statutory and consolidated) and a
description of our business and economic situation. Each shareholder is
entitled to request immediate delivery of a copy of these documents free of
charge. Shareholders registered in our share register will be notified of this
in writing.
Voting
Each registered share
carries one vote at a general meeting of shareholders. Voting rights may be
exercised by shareholders registered in our share register with voting rights in
person or by a duly appointed proxy, which proxy need not be a shareholder.
Except as described below, our articles of association do not limit the number
of registered shares that may be voted by a single shareholder. Beneficial
owners of shares who hold shares through a nominee exercise shareholders
rights through the nominee.
Our articles of association
limit the voting rights of registered shares that are controlled shares of a
shareholder to one vote less than 10% of the total voting rights of our share
capital as registered with the commercial register. Controlled shares of a
shareholder consist of shares owned by the shareholder (i) directly, (ii) with
respect to U.S. holders, by application of the attribution and constructive
ownership rules of Sections 958(a) and 958(b) of the U.S.
Internal Revenue Code of 1986, as amended, or (iii) as a beneficial owner
within the meaning of Section 13(d) of the Securities Exchange Act of
1934, as amended. The board of directors may waive this restriction.
To be able to exercise
voting rights, holders of the shares must apply to us for enrollment in our
share register as shareholders with voting rights. Registered holders of shares
may obtain the form of application from our transfer agent. The form of application
includes a representation that the holder is holding shares for his own
account. Certain exceptions exist for nominees. The board of directors will
register Cede & Co., as nominee of The Depository Trust Company, or
DTC, with voting rights with respect to shares held in street name through
DTC.
No shareholder will be
registered with voting rights for 10% or more of the share capital as recorded
in the commercial register. In furtherance of this limitation, the board of
directors is authorized at any time to request from any person which discloses
publicly, including in any filing with the Securities and Exchange Commission,
or to us that it beneficially owns 10% or more of the shares of the company,
that such person provide information with respect to all of its shares that it
beneficially owns which are being held by brokers, nominees or other persons on
its behalf. The board of directors is authorized to exempt Cede & Co.
and other nominees from these requirements.
If the board of directors
refuses to register a shareholder with voting rights, the board will notify the
shareholder of such refusal within 20 days of the receipt of the application to
register such shareholder. Furthermore, the board may cancel, with retroactive
application, the registration of a shareholder with voting rights if the
initial registration was on the basis of false information in the shareholders
application. Shareholders registered without voting rights
7
may not participate in or vote
at our shareholders meetings, but will be entitled to dividends, preemptive
rights and liquidation proceeds. Only shareholders that are registered as
shareholders with voting rights on the relevant record date are permitted to
participate in and vote at a general shareholders meeting.
Legal entities that are
linked to one another through capital, voting rights, management or in any
other manner, as well as all natural persons or legal entities achieving an
understanding or forming a syndicate or otherwise acting in concert to
circumvent the limitation on registration, are considered one shareholder or
nominee.
Treasury shares, whether
owned by us or one of our majority-owned subsidiaries, will not be entitled to
vote at general meetings of shareholders.
With respect to the election
of directors, each holder of registered shares entitled to vote at the election
has, subject to the limitation for shareholders whose controlled shares
represent 10% or more of our voting shares, the right to vote, in person or by
proxy, the number of registered shares held by him for as many persons as there
are directors to be elected. Our articles of association do not provide for
cumulative voting for the election of directors.
Pursuant to our articles of
association, the shareholders generally pass resolutions by the affirmative
vote of a majority of the votes cast. Abstentions and broker non-votes will be
disregarded.
The acting chair may direct
that elections be held and resolutions be decided by use of an electronic
voting system. Electronic resolutions and elections are considered equal to
resolutions and elections taken by way of a written ballot.
The Swiss Code and/or our
articles of association require the affirmative vote of at least two-thirds of
the voting rights and a majority of the par value of the registered shares,
each as represented at a general meeting to approve the following matters:
·
a
change of our purpose;
·
the
creation of shares with privileged voting rights;
·
the
restriction on the transferability of registered shares and any amendment in
relation thereto;
·
an
increase of capital, authorized or subject to a condition;
·
an
increase of capital out of equity against contributions in kind, or for the
purpose of acquisition of assets or the granting of special benefits;
·
any
change to the provisions relating to supermajority voting provisions in our
articles of association;
·
the
restriction or withdrawal of preemptive rights;
·
a
change in our place of incorporation;
·
the
dissolution of Foster Wheeler; and
·
any
alteration or amendment of articles 8, 9 or 16 of the articles of association,
which relate to registration in our share register and the voting rights of our
shareholders.
The same supermajority
voting requirements apply to resolutions in relation to transactions among
corporations based on Switzerlands Federal Act on Mergers, Demergers,
Transformations and the Transfer of Assets (the Merger Act), including a
merger, demerger or conversion of a corporation (other than a cash-out or
certain squeeze-out mergers, in which minority shareholders of the company
being acquired may be compensated in a form other than through shares of the
acquiring company, for instance, through cash or securities of a parent company
of the acquiring company or of another companyin such a merger, an affirmative
vote of 90% of the outstanding
8
registered shares is required).
Swiss law may also impose this supermajority voting requirement in connection
with the sale of all or substantially all of its assets by us. See Compulsory
Acquisitions; Appraisal Rights.
Our articles of association
require the affirmative vote of at least two-thirds of the registered shares
recorded in the commercial register and entitled to vote at a general meeting
to approve the removal of a member of the board of directors.
Quorum for General Meetings
Under Swiss law, there is no
mandatory quorum requirement unless set forth in a companys articles of
association (although certain actions by shareholders require the approval of a
specified percentage of all registered shares, whether or not such shares are
actually voted, which has the practical effect of a quorum requirement). Our
articles of association provide that the presence of shareholders, in person or
by proxy, holding at least a majority of the registered shares recorded in our
share register and generally entitled to vote at a meeting, is a quorum for the
transaction of most business.
Under the Swiss Code, the
board of directors has no authority to waive quorum requirements stipulated in
the articles of association.
Inspection of Books and Records
Under the Swiss Code, a
shareholder registered in our share register has a right to inspect the share
register with regard to his own shares and otherwise to the extent necessary to
exercise his shareholder rights. No other person has a right to inspect the
share register. The books and correspondence of a Swiss company may be
inspected with the express authorization of the general meeting of shareholders
or by resolution of the board of directors and subject to the safeguarding of
the companys business secrets. At a general meeting of shareholders, any
shareholder registered in our share register is entitled, subject to the
limitation described below, to request information from the board of directors
concerning the affairs of the company. Shareholders registered in our share
register may also ask the auditor questions regarding its audit of the company.
The board of directors and the auditor must answer shareholders questions to
the extent necessary for the exercise of shareholders rights and subject to
prevailing business secrets or other material interests of us.
Special Investigation
If the shareholders
inspection and information rights as outlined above prove to be insufficient,
any shareholder may propose to the general meeting of shareholders that
specific facts be examined by a special commissioner in a special
investigation. If the general meeting of shareholders approves the proposal, we
or any shareholder may, within 30 calendar days after the general meeting of
shareholders, request the court at our registered office to appoint a special
commissioner. If the general meeting of shareholders rejects the request, one
or more shareholders representing at least 10% of the share capital or holders
of registered shares in an aggregate par value of at least two million Swiss
francs may request the court to appoint a special commissioner. The court will
issue such an order if the petitioners can demonstrate that the board of
directors, any member of the board or one of our officers infringed the law or
our articles of association and thereby damaged the company or the
shareholders. The costs of the investigation would generally be allocated to us
and only in exceptional cases to the petitioners.
Compulsory Acquisitions; Appraisal Rights
Business combinations and
other transactions that are binding on all shareholders are governed by the
Merger Act. A statutory merger or demerger requires that at least 66
2
/
3
% of the registered shares and a majority of
the par value of the registered shares represented at the general meeting of
shareholders vote in favor of the transaction. Under the Merger Act, a demerger
may take two forms:
·
a
legal entity may divide all of its assets and transfer such assets to other
legal entities, with the shareholders of the transferring entity receiving
equity securities in the acquiring entities and the transferring entity
dissolving upon deregistration in the commercial register; or
·
a
legal entity may transfer all or a portion of its assets to other legal
entities, with the shareholders of the transferring entity receiving equity
securities in the acquiring entities.
9
If a transaction under the
Merger Act receives all of the necessary consents, all shareholders would be
compelled to participate in the transaction. See Voting.
Swiss companies may be
acquired by an acquirer through the direct acquisition of the share capital of
the Swiss company. With respect to corporations limited by shares, such as our
company, the Merger Act provides for the possibility of a so-called cash-out
or squeeze-out merger if the acquirer controls 90% of the outstanding
registered shares. In these limited circumstances, minority shareholders of the
company being acquired may be compensated in a form other than through shares
of the acquiring company (for instance, through cash or securities of a parent
company of the acquiring company or of another company). For business
combinations effected in the form of a statutory merger or demerger and subject
to Swiss law, the Merger Act provides that if the equity rights have not been
adequately preserved or compensation payments in the transaction are
unreasonable, a shareholder may request the competent court to determine a
reasonable amount of compensation.
In addition, under Swiss
law, the sale of all or substantially all of its assets by us may require a
resolution of the general meeting of shareholders passed by holders of at least
two-thirds of the voting rights and a majority of the par value of the
registered shares, each as represented at the general meeting of shareholders.
Whether or not a shareholder resolution is required depends on the particular
transaction, including whether the following test is satisfied:
·
the
company sells a core part of its business, without which it is economically
impracticable or unreasonable to continue to operate the remaining business;
·
the
companys assets, after the divestment, are not invested in accordance with the
companys statutory business purpose; and
·
the
proceeds of the divestment are not earmarked for reinvestment in accordance
with the companys business purpose but, instead, are intended for distribution
to shareholders or for financial investments unrelated to the companys
business.
If all of the foregoing
apply, a shareholder resolution would likely be required.
Anti-Takeover Provisions
Our articles of association
have provisions that could have an anti-takeover effect. These provisions are
intended to enhance the likelihood of continuity and stability in the
composition of the board of directors and in the policies formulated by the
board of directors, and may have the effect of discouraging actual or
threatened changes of control by limiting certain actions that may be taken by
a potential acquirer prior to its having obtained sufficient control to adopt a
special resolution amending our articles of association.
The articles of association
provide that our board of directors will be divided into three classes serving
staggered three-year terms. Under the Swiss Code, directors may at any time,
with or without cause, be removed from office by resolution of the shareholders
at a general meeting of shareholders, provided that a proposal for such
resolution has been put on the agenda for the meeting in accordance with the
requirements of the Swiss Code and our articles of association. Our articles of
association provide that a decision of the shareholders at a general meeting to
remove a director requires the vote of shareholders holding at least 66
2
/
3
% of the registered shares outstanding and
entitled to vote at that meeting.
Our articles of association
include authorized share capital, according to which the board of directors is
authorized, at any time during a maximum two-year period, to issue up to 63,207,957
registered shares with a par value of CHF 3.00 per share and to limit or
withdraw the preemptive rights of the existing shareholders in various
circumstances.
In addition, under our
articles of association, shareholders whose controlled shares (as defined in
the articles of association) represent 10% or more of our total voting shares
will be limited to voting one vote less than 10% of the total voting rights of
our share capital as registered with the commercial register, which could make
it more difficult for a third party to acquire us without the consent of our
board of directors.
10
For other provisions that
could be considered to have an anti-takeover effect, see Preemptive Rights
and Advance Subscription Rights and General Meetings of Shareholders above.
Legal Name; Formation; Fiscal
Year; Registered Office
Our
legal name is Foster Wheeler AG. We were initially formed on November 18,
2008 and registered with the commercial register of the Canton of Zug on November 25,
2008. We are incorporated and domiciled in Zug, Switzerland, and operate under
the Swiss Code as a stock corporation (Aktiengesellschaft). We are recorded in
the Commercial Register of the Canton of Zug with the registration number
CH-170.3.032.880-7. Our fiscal year is the calendar year.
Our
registered office in Switzerland is c/o Bär & Karrer, Baarerstrasse 8,
CH-6301 Zug, Switzerland.
Corporate Purpose
Our business purpose is to
acquire, hold, manage, exploit and sell, whether directly or indirectly,
participations in businesses in Switzerland and abroad, including but not
limited to businesses that are involved in engineering and construction
services, the design, manufacture and ownership of power equipment and the
ownership and operation of power production and power generation facilities as
well as to provide financing for these purposes.
Duration; Dissolution; Rights upon Liquidation
Our duration is unlimited.
We may be dissolved at any time with the approval of shareholders holding 66
2
/
3
% of the voting rights and a majority of the
par value of the registered shares represented at a general meeting.
Dissolution by court order is possible if we become bankrupt, or for cause at
the request of shareholders holding at least 10% of our share capital. Under
Swiss law, any surplus arising out of liquidation, after the settlement of all
claims of all creditors, will be distributed to shareholders in proportion to
the paid-up par value of registered shares held, subject to Swiss withholding
tax requirements.
Uncertificated Shares
We are authorized to issue
registered shares in certificated or uncertificated form. We currently issue
registered shares in uncertificated, book-entry form.
Stock Exchange Listing
Our registered shares are
listed on the NASDAQ Global Select Market and trade under the symbol FWLT.
No Sinking Fund
The registered shares have
no sinking fund provisions.
No Liability for Further Calls or Assessments
Our currently outstanding
registered shares are duly and validly issued, fully paid and nonassessable.
No Redemption and Conversion
The registered shares are
not convertible into shares of any other class or series or subject to
redemption either by us or the holder of the shares.
Transfer and Registration of Ownership of Shares
We have not imposed any
restrictions applicable to the transfer of our registered shares. Our share
register is kept by Mellon Investor Services, LLC, which acts as transfer agent
and registrar. The share register reflects only record owners of our shares.
Swiss law does not recognize fractional share interests.
11
Item 2. Exhibits.
Exhibit
|
|
Description
|
4.1
|
|
Articles of Association of
Foster Wheeler AG (Filed as Exhibit 3.1 to Foster Wheeler AGs Current
Report on Form 8-K filed on February 9, 2009 and incorporated
herein by reference.)
|
|
|
|
4.2
|
|
Organizational Regulations
of Foster Wheeler AG (Filed as Exhibit 3.2 to Foster Wheeler AGs
Current Report on Form 8-K filed on February 9, 2009 and
incorporated herein by reference.)
|
12
SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934,
the registrant has duly caused this Amendment No. 1 to the registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
|
|
FOSTER
WHEELER AG
|
|
|
|
|
|
|
Date:
February 9, 2009
|
|
By:
|
/s/
Peter J. Ganz
|
|
|
|
Name:
Peter J. Ganz
|
|
|
|
Title:
|
Executive
Vice President, General Counsel and Secretary
|
EXHIBIT INDEX
Exhibit
|
|
Description
|
4.1
|
|
Articles of Association of
Foster Wheeler AG (Filed as Exhibit 3.1 to Foster Wheeler AGs Current
Report on Form 8-K filed on February 9, 2009 and incorporated
herein by reference.)
|
|
|
|
4.2
|
|
Organizational Regulations
of Foster Wheeler AG (Filed as Exhibit 3.2 to Foster Wheeler AGs
Current Report on Form 8-K filed on February 9, 2009 and
incorporated herein by reference.)
|
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