As filed with the Securities and Exchange Commission
on August 23, 2024
Registration Statement No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
HUDSON TECHNOLOGIES, INC.
(Exact name of registrant as specified in its
charter)
| New York | |
13-3641539 |
| (State or other jurisdiction of | |
(IRS Employer |
| incorporation or organization) | |
Identification No.) |
300 Tice Boulevard, Suite 290
Woodcliff Lake, NJ 07677
(Address of Principal Executive Offices)
Hudson Technologies, Inc. 2024 Stock Incentive
Plan
(Full Title of the Plan)
Brian F. Coleman, Chief Executive Officer
Hudson Technologies, Inc.
300 Tice Boulevard, Suite 290
Woodcliff Lake, NJ 07677
Telephone: (845) 735-6000
(Name, Address and Telephone Number, including
area code, of Agent for Service)
Copies of all communications, including all communications
sent to agent for service should be sent to:
Michael Grundei, Esq.
Wiggin and Dana LLP
281 Tresser Boulevard, 14th Floor
Stamford,
Connecticut 06901
Telephone: (203) 363-7600
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ | |
Accelerated filer x |
| Non-accelerated filer ¨ | |
Smaller reporting company ¨ |
| | |
Emerging growth company ¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
The documents containing
the information specified in “Item 1. Plan Information” and “Item 2. Registrant Information and Employee Plan Annual
Information” of Form S-8 will be sent or given to participants of the Hudson Technologies, Inc. 2024 Stock Incentive Plan, as specified
by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to
be, and are not, filed with the Securities and Exchange Commission either as part of this Registration Statement or as a prospectus or
prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
There are hereby incorporated by reference in
this Registration Statement of Hudson Technologies, Inc. (the “Company”) the following documents and information heretofore
filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") with the Securities and Exchange Commission:
| (e) | The description of the Company's Common
Stock contained in the Company's Registration Statement on Form 8-A, as amended. |
All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing such documents.
The Company will provide, without charge to each
person, including any beneficial owner, to whom this document is delivered, upon written or oral request of such person, a copy of any
or all of the documents incorporated herein by reference (other than exhibits, unless such exhibits specifically are incorporated by
reference into such documents or this document). Requests for such documents should be submitted in writing, addressed to the office
of the Secretary, Hudson Technologies, Inc., 300 Tice Boulevard, Suite 290, Woodcliff Lake, NJ 07677, or by telephone at (845) 735-6000.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and
Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and
Officers. |
The New York Business Corporation Law (Sections
721 through 726) permits a corporation to indemnify any of its directors and officers for acts performed in their capacities, subject
to certain conditions. Paragraph 3 of the Certificate of Incorporation of the Company provides that a director shall not be liable to
the registrant or its shareholders for damages for any breach of duty in such capacity except for liability if a judgment or other final
adjudication adverse to the director establishes that his or her acts or omissions were in bad faith or involved intentional misconduct
or a knowing violation of law or that the director personally gained a financial profit or other advantage to which he or she was not
legally entitled or that the director's acts violated Section 719 of the New York Business Corporation Law. Paragraph 17 of Article III
of the Company’s By-laws provides for indemnification of directors and officers to the fullest extent permitted by the New York
Business Corporation Law.
| Item 7. | Exemption From Registration Claimed. |
Not applicable.
| 4.1 | Certificate of Incorporation and Amendment
(1) |
| 4.2 | Amendment to Certificate of Incorporation,
dated July 20, 1994 (1) |
| 4.3 | Amendment to Certificate of Incorporation,
dated October 26, 1994 (1) |
| 4.4 | Certificate of Amendment of the Certificate
of Incorporation dated March 16, 1999 (2) |
| 4.5 | Certificate of Correction of the Certificate
of Amendment dated March 25, 1999 (2) |
| 4.6 | Certificate of Amendment of the Certificate
of Incorporation dated March 29, 1999 (2) |
| 4.7 | Certificate of Amendment of the Certificate
of Incorporation dated February 16, 2001 (3) |
| 4.8 | Certificate of Amendment of the Certificate
of Incorporation dated March 20, 2002 (4) |
| 4.9 | Certificate of Amendment of the Certificate
of Incorporation dated January 3, 2003 (5) |
| 4.10 | Certificate of Amendment of the Certificate
of Incorporation dated September 15, 2015 (6) |
| 4.11 | Amended and Restated By-Laws (7) |
| 4.12 | Hudson Technologies, Inc. 2024 Stock Incentive
Plan (filed herewith) |
| 5.1 | Opinion
of Wiggin and Dana LLP (filed herewith) |
| 23.1 | Consent of BDO USA, P.C. (filed herewith) |
| 23.2 | Consent of Counsel (included in Exhibit 5.1) |
| 24.1 | Power of Attorney (included in signature page) |
| 107 | Filing Fee Table |
| (1) | Incorporated
by reference to the comparable exhibit filed with the Registrant's Registration Statement
on Form SB-2(No. 33-80279-NY) |
| (2) | Incorporated
by reference to the comparable exhibit filed with the Registrant's Quarterly Report on Form
10-QSB for the quarter ended June 30, 1999. |
| (3) | Incorporated
by reference to the comparable exhibit filed with the Registrant's Report on Form 10-KSB
for the year ended December 31, 2000. |
| (4) | Incorporated
by reference to the comparable exhibit filed with the Registrant's Report on Form 10-KSB
for the year ended December 31, 2001. |
| (5) | Incorporated
by reference to the comparable exhibit filed with the Registrant's Report on Form 10-KSB
for the year ended December 31, 2002. |
| (6) | Incorporated
by reference to the comparable exhibit filed with the Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 2015. |
| (7) | Incorporated
by reference to the comparable exhibit filed with the Registrant's Current Report on Form
8-K filed on March 3, 2022. |
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii) To reflect
in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Filing
Fee Tables” or the “Calculation of Registration Fee” table, as applicable, in the effective registration statement;
(iii) To include
any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are incorporated by reference
in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to
this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of
the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating
to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Borough of Woodcliff Lake,
State of New Jersey, on this 23rd day of August, 2024.
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HUDSON TECHNOLOGIES, INC. |
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By: |
/s/ Brian F. Coleman |
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Name: |
Brian F. Coleman |
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Title: |
Chairman of the Board, President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian F. Coleman and Brian J. Bertaux and each of them his or her true and lawful attorneys-in-fact and
agents, each acting alone, with full and several power of substitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments, including post-effective amendments, and supplements to this registration statement,
and to file the same, with all exhibits thereunto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and purposes as they or he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the dates indicated.
| Name |
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Capacity |
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Date |
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| (i) Principal Executive Officer: |
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Chairman of the Board, |
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| /s/ Brian F. Coleman |
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President and Chief Executive |
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August 23, 2024 |
| Brian F. Coleman |
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Officer |
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| (ii) Principal Financial and Accounting Officer: |
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| /s/ Brian J.
Bertaux |
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Chief Financial Officer |
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August 23, 2024 |
| Brian J. Bertaux |
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| (iii) A Majority of the Board of Directors: |
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| /s/ Vincent P. Abbatecola |
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Director |
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August 23, 2024 |
| Brian F. Coleman |
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| /s/ Nicole Bulgarino |
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Director |
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August 23, 2024 |
| Nicole Bulgarino |
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| /s/ Brian F. Coleman |
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Director |
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August 23, 2024 |
| Brian J. Bertaux |
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| /s/ Kathleen L. Houghton |
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Director |
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August 23, 2024 |
| Kathleen L. Houghton |
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| /s/ Loan Mansy |
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Director |
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August 23, 2024 |
| Loan Mansy |
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| /s/ Richard Parrillo |
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Director |
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August 23, 2024 |
| Richard Parrillo |
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| /s/ Eric A. Prouty |
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Director |
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August 23, 2024 |
| Eric A. Prouty |
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Exhibit 4.12
HUDSON TECHNOLOGIES, INC.
2024 STOCK INCENTIVE PLAN
1. Purpose
The 2024 Hudson Technologies, Inc. Stock
Incentive Plan (the "Plan") is intended to provide incentives which will attract, retain, motivate and reward highly competent
persons as non-employee directors, executive officers and other employees of, or consultants and advisors to, Hudson Technologies, Inc.
(the "Company") or any of its subsidiary corporations, limited liability companies or other forms of business entities now existing
or hereafter formed or acquired ("Subsidiaries"), by providing them opportunities to acquire shares of common stock, par value
$.01 per share, of the Company ("Common Stock") or to receive other Awards (as defined in Section 4 below) described herein.
Furthermore, the Plan is intended to assist in further aligning the interests of such non-employee directors, executive officers and other
employees, consultants and advisors, with those of the stockholders of the Company.
2. Administration
a. The Plan generally shall be administered by
a committee (the "Committee") which shall be the Compensation Committee of the Board of Directors of the Company (the "Board")
or another committee appointed by the Board from among its members. In the absence of such committee, the Board shall administer the Plan.
Unless the Board determines otherwise, the Committee shall be comprised of at least two members. All members of the Committee shall (i) meet
the independence requirements of applicable law and the rules and regulations of the Nasdaq Stock Market (“Nasdaq”),
and (ii) qualify as “non-employee” directors within the meaning of Rule 16b-3 under the Securities Exchange Act
of 1934, as amended. The Committee is authorized, subject to the provisions of the Plan, to establish such rules and regulations
as it deems necessary for the proper administration of the Plan and to make such determinations and interpretations and to take such action
in connection with the Plan and any Awards granted hereunder as it deems necessary or advisable. All determinations and interpretations
made by the Committee shall be binding and conclusive on all persons and entities, including participants and their legal representatives.
However, the Board shall have the authority to establish the level of stock options or stock awards granted under the Plan, as well as
stock grant levels and stock ownership guidelines, for the non-employee directors.
b. No member of the Board, no member of the Committee
or subcommittee thereof, and no agent of the Committee who is an employee of the Company, shall be liable for any act or failure to act
hereunder, except in circumstances involving his or her bad faith, gross negligence or willful misconduct, or for any act or failure to
act hereunder by any other member or employee or by any agent to whom duties in connection with the administration of this Plan have been
delegated. The Company shall indemnify members of the Board, members of the Committee and any agent of the Committee who is an employee
of the Company against any and all liabilities or expenses to which they may be subjected by reason of any act or failure to act with
respect to their duties on behalf of the Plan, except in circumstances involving such person's bad faith, gross negligence or willful
misconduct.
c. The Committee shall have the authority to grant
Awards to non-employee directors, executive officers and other employees of, or consultants and advisors to, the Company or any of its
Subsidiaries. The Committee (i) may delegate to one or more of its members, or to one or more agents, such administrative duties
as it may deem advisable, and (ii) may delegate any of its responsibilities to a subcommittee comprised of one or more members of
the Committee or to the CEO, including, but not limited to, the authority to make grants of awards of stock rights or options to any officer
or employee of the Company, other than officers subject to Section 16 of the Securities Exchange Act of 1934, under the Plan, as
the Committee deems appropriate. The Committee, or any person to whom it has delegated duties as aforesaid, may employ one or more persons
to render advice with respect to any responsibility the Committee or such person may have under the Plan. The Committee may employ such
legal or other counsel, consultants and agents as it may deem desirable for the administration of the Plan and may rely upon any opinion
or computation received from any such counsel, consultant or agent. Expenses incurred by the Committee in the engagement of such counsel,
consultant or agent shall be paid by the Company or any of its Subsidiaries whose employees have benefited from the Plan, as determined
by the Committee.
3. Participants
Participants shall consist of such non-employee
directors, executive officers and other employees of, or consultants and advisors to, the Company or any of its Subsidiaries and outside
contractors who the Committee in its sole discretion determines to be significantly responsible for the success and future growth and
profitability of the Company and who the Committee may designate from time to time to receive Awards under the Plan. Designation as a
participant in any year shall not require the Committee to designate such person to receive an Award in any other year or, once designated,
to receive the same type or amount of Award as granted to the participant in any other year. The Committee shall consider such factors
as it deems pertinent in selecting participants and in determining the type, amount and other terms of Awards.
4. Types
of Awards and Vesting Restrictions
Awards under the Plan may be granted in any one
or a combination of (1) Stock Options, (2) Stock Grants, and (3) Performance Awards (individually an "Award,"
and collectively, "Awards"). Awards shall be evidenced by Award agreements (which need not be identical) in such forms as the
Committee may from time to time approve; provided, however, that in the event of any conflict between the provisions of the Plan and any
such agreements, the provisions of the Plan shall prevail.
5. Common
Stock Available Under the Plan
a. Shares Available. The aggregate number of shares
of Common Stock that may be subject to Awards, including shares of Common Stock underlying Stock Options, granted under this Plan shall
be 3,000,000 shares of Common Stock, which may be authorized and unissued or treasury shares, subject to any adjustments made in accordance
with Section 9 below. Notwithstanding the preceding sentence, but subject to adjustments pursuant to Section 9 below, the number
of shares that are available for incentive stock options ("Incentive Stock Options") within the meaning of Section 422
of the Code shall be determined by reducing the number of shares designated in the preceding sentence by the number of shares issued under
the Plan, or granted pursuant to outstanding Awards (whether or not shares are issued pursuant to such Awards), provided that any shares
that are either issued or purchased under the Plan and forfeited back to the Plan, or surrendered in payment of the Exercise Price for
an Award or in connection with a tax withholding right shall be available for issuance pursuant to future incentive stock options.
b. Maximum Limits. The maximum number of shares
of Common Stock with respect to which Awards may be granted or measured to any participant during any fiscal year of the Company shall
not exceed 750,000 shares, subject to any adjustment made in accordance with Section 10 below.
c. Shares Underlying Awards That Again Become
Available. Any shares of Common Stock subject to a Stock Option, Stock Grant or Performance Award, which for any reason are cancelled,
forfeited, or surrendered to the Company, shall again be available for Awards under the Plan. The preceding sentence shall apply only
for purposes of determining the aggregate number of shares of Common Stock subject to Awards pursuant to Section 5.a above but shall
not apply for purposes of determining the maximum number of shares of Common Stock subject to Awards that any individual participant may
receive pursuant to Section 5.b above.
6. Stock
Options
a. In General. The Committee is authorized to
grant Stock Options to non-employee directors, executive officers and other employees of, or consultants or advisors to, the Company or
any of its Subsidiaries and shall, in its sole discretion, determine which of such individuals shall receive Stock Options and the number
of shares of Common Stock underlying each Stock Option. Stock Options may be (i) Incentive Stock Options, or (ii) Stock Options
which do not qualify as Incentive Stock Options ("Non-Qualified Stock Options"). The Committee may grant to a participant in
the Plan one or more Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock Options. Each Stock Option shall be
subject to such terms and conditions consistent with the Plan as shall be determined by the Committee and as set forth in the Award agreement.
In addition, each Stock Option shall be subject to the following limitations set forth in this Section 6.
b. Exercise Price. Each Stock Option granted hereunder
shall have such per-share exercise price as the Committee may determine on the date of grant; provided, however, subject to Section 6(e) below,
that the per-share exercise price shall not be less than 100 percent of the Fair Market Value (as defined in Section 14 below) of
Common Stock on the date the Stock Option is granted.
c. Payment of Exercise Price. Unless otherwise
provided by the Committee, the Stock Option exercise price must be paid in cash. In the discretion of the Committee, a payment may also
be made by delivering a properly executed exercise notice to the Company together with a copy of irrevocable instructions to a broker
to deliver promptly to the Company the amount of sale or loan proceeds to pay the exercise price with the requirement of the broker same
day reconciliation or as otherwise determined by the Company. To facilitate the foregoing, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms. The Committee may prescribe any other method of paying the exercise price that it determines
to be consistent with applicable law and the purpose of the Plan.
d. Exercise Period. Stock Options granted under
the Plan shall be exercisable at such time or times as specified in the Plan and the Award agreement; provided, however, that no Stock
Option shall be exercisable later than ten years after the date it is granted.
e. Limitations on Incentive Stock Options. Incentive
Stock Options may be granted only to participants who are executive officers or other employees of the Company or any of its Subsidiaries
on the date of grant. The aggregate market value (determined as of the time the Stock Option is granted) of Common Stock with respect
to which Incentive Stock Options (under all option plans of the Company) are exercisable for the first time by a participant during any
calendar year shall not exceed $100,000. For purposes of the preceding sentence, Incentive Stock Options shall be taken into account
in the order in which they are granted. Incentive Stock Options may not be granted to any participant who, at the time of grant, owns
stock possessing (after the application of the attribution rules of Section 424(d) of the Code) more than 10 percent of
the total combined voting power of all outstanding classes of stock of the Company or any of its Subsidiaries, unless the exercise price
is fixed at not less than 110 percent of the Fair Market Value of Common Stock on the date of grant and the exercise of such option is
prohibited by its terms after the expiration of five years from the date of grant of such option.
f. Alternative Settlement of Option. If
provided in an Award agreement, or upon the receipt of written notice of exercise, or as otherwise provided for by the Board or Committee,
as the case may be, either at or after the time of grant of the Stock Option, the Board or the Committee, as the case may be, may elect
to settle all or part of any Stock Option by paying to the optionee an amount, in cash or Stock (valued at Fair Market Value on the date
of exercise), equal to the product of the excess of the Fair Market Value of one share of Stock, on the date of exercise over the Stock
Option exercise price, multiplied by the number of shares of Stock with respect to which the optionee proposes to exercise the Option.
Any such settlements which relate to Options which are held by optionees who are subject to Section 16(b) of the Exchange Act
shall comply with Rule 16b-3, to the extent applicable, and with such other conditions as the Board or Committee, as the case may
be, may impose.
7. Stock
Grants
The Committee is authorized to grant Stock Grants
to non-employee directors, executive officers and other employees of, or consultants or advisors to, the Company or any of its Subsidiaries
and shall, in its sole discretion, determine which of such individuals shall receive Stock Grants and the number of shares of Common Stock
underlying each Stock Grant. Each Stock Grant shall be subject to such terms and conditions consistent with the Plan as shall be determined
by the Committee and as set forth in the Award agreement, including, without limitation, restrictions on the sale or other disposition
of such shares, and the right of the Company to reacquire such shares for no consideration upon termination of the participant's employment
with, or services performed for, the Company or any of its Subsidiaries within specified periods. The Committee may require the participant
to deliver a duly signed stock power, endorsed in blank, relating to Common Stock covered by such Stock Grant and/or that the stock certificates
evidencing such shares be held in custody or bear restrictive legends until the restrictions thereon shall have lapsed. The Award agreement
shall specify whether the participant shall have, with respect to the shares of Common Stock subject to a Stock Grant, all of the rights
of a holder of shares of Common Stock, including the right to receive dividends, if any, and to vote the shares.
8. Performance
Awards
a. In General. The Committee is authorized to
grant Performance Awards to executive officers and other employees of the Company or any of its Subsidiaries and shall, in its sole discretion,
determine such executive officers and other employees who will receive Performance Awards and the number of shares of Common Stock that
may be subject to each Performance Award. Each Performance Award shall be subject to such terms and conditions consistent with the Plan
as shall be determined by the Committee and as set forth in the Award agreement. The Committee shall set performance targets at its discretion
which, depending on the extent to which they are met, will determine the number and/or value of Performance Awards that will be paid out
to the participants, and may attach to such Performance Awards one or more restrictions. Performance targets may be based upon, without
limitation, Company-wide, divisional and/or individual performance.
b. Payout. Payment of earned Performance Awards
may be made in shares of Common Stock or in cash and shall be made in accordance with the terms and conditions prescribed or authorized
by the Committee. Subject to Section 20 below, if permitted by the Committee, the participant may elect to defer, or the Committee
may require or permit the deferral of, the receipt of Performance Awards upon such terms as the Committee deems appropriate.
9. Adjustment
Provisions
If there shall be any change in Common Stock of
the Company, through merger, consolidation, reorganization, recapitalization, stock dividend, stock split, reverse stock split, split
up, spinoff, combination of shares, exchange of shares, dividend in kind or other like change in capital structure or distribution (other
than normal cash dividends) to stockholders of the Company, an adjustment shall be made to each outstanding Stock Option such that each
such Stock Option shall thereafter be exercisable for such securities, cash and/or other property as would have been received in respect
of Common Stock subject to such Stock Option had such Stock Option been exercised in full immediately prior to such change or distribution,
and such an adjustment shall be made successively each time any such change shall occur. In addition, in the event of any such change
or distribution, in order to prevent dilution or enlargement of participants' rights under the Plan, the Committee shall adjust, in an
equitable manner, the number and kind of shares that may be issued under the Plan, the number and kind of shares subject to outstanding
Awards, the exercise price applicable to outstanding Awards, and the Fair Market Value of Common Stock and other value determinations
applicable to outstanding Awards. In addition, the Committee is authorized to make adjustments to the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring events affecting the Company or any of its Subsidiaries or the
financial statements of the Company, or in response to changes in applicable laws, regulations, or accounting principles. Notwithstanding
the foregoing, (i) any adjustment with respect to an Incentive Stock Option shall comply with the rules of Section 424(a) of
the Code, and (ii) in no event shall any adjustment be made which would render any Incentive Stock Option granted hereunder other
than an incentive stock option for purposes of Section 422 of the Code.
10. Change
in Control
a. Accelerated Vesting. Notwithstanding any other
provision of this Plan, if there is a Change in Control of the Company (as defined in Section 10(b) below), all unvested Awards
granted under the Plan shall become fully vested immediately upon the occurrence of the Change of Control and such vested Awards shall
be paid out or settled, as applicable, within 60 days upon the occurrence of the Change of Control, subject to requirements of applicable
laws and regulations.
b. Definition. For purposes of this Section 10,
(i) if there is an employment agreement or a change-in-control agreement between the participant and the Company or any of its Subsidiaries
in effect, "Change in Control" shall have the same definition as the definition of "change in control" contained in
such employment agreement or change-in-control agreement, or (ii) if "Change in Control" is not defined in such employment
agreement or change-in-control agreement, or if there is no employment agreement or change-in-control agreement between the participant
and the Company or any of its Subsidiaries in effect, a "Change in Control" of the Company shall be deemed to have occurred
upon any of the following events:
(1) any person or other entity (other than
any of the Company's Subsidiaries or any employee benefit plan sponsored by the Company or any of its Subsidiaries) including any person
as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner, as defined in Rule 13d-3 under the Exchange
Act, directly or indirectly, of more than 50 percent of the total combined voting power of all classes of capital stock of the Company
normally entitled to vote for the election of directors of the Company (the "Voting Stock");
(2) the stockholders of the Company approve
the sale of all or substantially all of the property or assets of the Company and such sale occurs;
(3) the Company's Common Stock shall cease
to be publicly traded;
(4) the stockholders of the Company approve
a consolidation or merger of the Company with another corporation (other than with any of the Company's Subsidiaries), the consummation
of which would result in the stockholders of the Company immediately before the occurrence of the consolidation or merger owning, in the
aggregate, less than 51 percent of the Voting Stock of the surviving entity, and such consolidation or merger occurs; or
(5) a change in the Company's Board occurs
with the result that the members of the Board on the Effective Date (as defined in Section 23(a) below) of the Plan (the "Incumbent
Directors") no longer constitute a majority of such Board, provided that any person becoming a director (other than a director whose
initial assumption of office is in connection with an actual or threatened election contest or the settlement thereof, including but not
limited to a consent solicitation, relating to the election of directors of the Company) whose election or nomination for election was
supported by two-thirds (2/3) of the then Incumbent Directors shall be considered an Incumbent Director for purposes hereof.
c. Cashout. The Committee, in its discretion,
may determine that, upon the occurrence of a Change in Control of the Company, each Stock Option outstanding hereunder shall terminate
and such holder shall receive, within 60 days upon the occurrence of the Change of Control, with respect to each share of Common Stock
subject to such Stock Option, an amount equal to the excess of the Fair Market Value of such shares of Common Stock immediately prior
to or upon the occurrence of such Change in Control over the exercise price per share of such Stock Option; such amount to be payable
in cash, in one or more kinds of property (including the property, if any, payable in the transaction) or in a combination thereof, as
the Committee, in its discretion, shall determine.
11. Termination
of Employment
a. Subject to any written agreement between the
participant and the Company or any of its Subsidiaries, if a participant's employment is terminated due to death or disability:
(1) all unvested Stock Grants held by the
participant on the date of the participant's death or the date of the termination of his or her employment due to disability, as the case
may be, shall immediately become vested as of such date;
(2) all unexercisable Stock Options held
by the participant on the date of the participant's death or the date of the termination of his or her employment due to disability, as
the case may be, shall immediately become exercisable as of such date and shall remain exercisable until the earlier of (i) the end
of the one-year period following the date of the participant's death or the date of the termination of his or her employment due to disability,
as the case may be, or (ii) the date the Stock Option would otherwise expire;
(3) all exercisable Stock Options held by
the participant on the date of the participant's death or the date of the termination of his or her employment due to disability, as the
case may be, shall remain exercisable until the earlier of (i) the end of the one-year period following the date of the participant's
death or the date of the termination of his or her employment due to disability, as the case may be, or (ii) the date the Stock Option
would otherwise expire; and
(4) all unearned and/or unvested Performance
Awards held by the participant on the date of the participant's death or the date of the termination of his or her employment due to disability,
as the case may be, with regard to which a minimum of one year of the performance period (as defined by the Committee) has elapsed, shall
immediately become earned or vested as of such date and shall be paid out and/or settled based on the participant's performance immediately
prior to the date of the participant's death or the date of the termination of his or her employment due to disability, as the case may
be, on a pro-rated basis.
b. Subject to any written agreement between the
participant and the Company or any of its Subsidiaries, if a participant's employment is terminated by the Company for Cause (as defined
in Section 11(f) below), or if a participant voluntarily terminates the participant’s employment, all Awards, whether
or not vested, earned or exercisable, held by the participant on the date of the termination of his or her employment for Cause, or on
the date of the participant’s voluntary termination of employment, shall immediately be canceled as of such date.
c. Subject to any written agreement between the
participant and the Company or any of its Subsidiaries, if a participant's employment is terminated for any reason other than as provided
in Section 11(b) above, or other than due to death or disability:
(1) all unvested, unearned or unexercisable
Awards held by the participant on the date of the termination of his or her employment shall immediately be forfeited by such participant
as of such date; and
(2) all exercisable Stock Options held by
the participant on the date of the termination of his or her employment shall remain exercisable until the earlier of (i) the end
of the 90-day period following the date of the termination of the participant's employment, or (ii) the date the Stock Option would
otherwise expire.
d. Notwithstanding anything contained in the Plan
to the contrary, the Committee may, in its discretion, provide that:
(1) any or all unvested Stock Grants held
by the participant on the date of the termination of the participant's employment shall immediately become vested as of such date;
(2) any or all unexercisable Stock Options
held by the participant on the date of the participant's death and/or the date of the termination of his or her employment shall immediately
become exercisable as of such date and shall remain exercisable until a date that occurs on or prior to the date the Stock Option is scheduled
to expire, provided, however, that Incentive Stock Options shall remain exercisable not longer than the end of the 90-day period following
the date of the termination of the participant's employment;
(3) any or all exercisable Stock Options
held by the participant on the date of the participant's death and/or the date of the termination of his or her employment shall remain
exercisable until a date that occurs on or prior to the date the Stock Option is scheduled to expire, provided, however, that Incentive
Stock Options shall remain exercisable not longer than the end of the 90-day period following the date of the termination of the participant's
employment; and/or
(4) a participant shall immediately become
vested in all or a portion of any earned Performance Awards held by such participant on the date of the termination of the participant's
employment, and such vested Performance Awards (or portion thereof) and/or any unearned Performance Awards (or portion thereof) held by
such participant on the date of the termination of his or her employment shall immediately become payable to such participant as if all
performance goals had been met as of the date of the termination of his or her employment.
e. Notwithstanding anything contained in the Plan
to the contrary, (i) the provisions contained in this Section 11 shall be applied to an Incentive Stock Option only if the application
of such provision maintains the treatment of such Incentive Stock Option as an Incentive Stock Option and (ii) the exercise period
of an Incentive Stock Option in the event of a termination due to disability provided in Section 11(a)(3) above shall only apply
if the participant's disability satisfies the requirement of "permanent and total disability" as defined in Section 22(e)(3) of
the Code.
f. For purposes of this Section 11, (i) if
there is an employment agreement between the participant and the Company or any of its Subsidiaries in effect, "Cause" shall
have the same definition as the definition of "cause" contained in such employment agreement; or (ii) if "Cause"
is not defined in such employment agreement or if there is no employment agreement between the participant and the Company or any of its
Subsidiaries in effect, "Cause" shall include, but is not limited to:
(1) any willful and continuous neglect of
or refusal to perform the employee's duties or responsibilities with respect to the Company or any of its Subsidiaries, insubordination,
dishonesty, gross neglect or willful malfeasance by the participant in the performance of such duties and responsibilities, or the willful
taking of actions which materially impair the participant's ability to perform such duties and responsibilities, or any serious violation
of the rules or regulations of the Company;
(2) the violation of any local, state or
federal criminal statute, including, without limitation, an act of dishonesty such as embezzlement, theft or larceny;
(3) intentional provision of services in
competition with the Company or any of its Subsidiaries, or intentional disclosure to a competitor of the Company or any of its Subsidiaries
of any confidential or proprietary information of the Company or any of its Subsidiaries; or
(4) any similar conduct, including, without
limitation, disparagement of the Company or any of its Subsidiaries, by the participant with respect to which the Company determines in
its discretion that the participant has terminated employment under circumstances such that the payment of any compensation attributable
to any Award granted under the Plan would not be in the best interest of the Company or any of its Subsidiaries.
For purposes of this Section 11, the Committee
shall have the authority to determine whether the "Cause" exists and whether subsequent actions on the part of the participant
have cured the "Cause."
12. Transferability
Each Award granted under the Plan to a participant
who is subject to restrictions on transferability and/or exercisability shall not be transferable otherwise than by will or the laws of
descent and distribution and/or shall be exercisable, during the participant's lifetime, only by the participant. In the event of the
death of a participant, each Stock Option theretofore granted to him or her shall be exercisable in accordance with Section 11 above
and then only by the executor or administrator of the estate of the deceased participant or the person or persons to whom the deceased
participant's rights under the Stock Option shall pass by will or the laws of descent and distribution. Notwithstanding the foregoing,
at the discretion of the Committee, an Award (other than an Incentive Stock Option) may permit the transferability of such Award by a
participant solely to members of the participant's immediate family or trusts or family partnerships for the benefit of such persons,
subject to any restriction included in the Award agreement.
13. Other
Provisions
Awards granted under the Plan may also be subject
to such other provisions (whether or not applicable to the Award granted to any other participant) as the Committee determines on the
date of grant to be appropriate, including, without limitation, for the installment purchase of Common Stock under Stock Options to assist
the participant, excluding an executive officer or a director, in financing the acquisition of Common Stock, for the forfeiture of, or
restrictions on resale or other disposition of, Common Stock acquired under any form of the Award, for the acceleration of exercisability
or vesting of Awards in the event of the Change in Control of the Company, or to comply with federal and state securities laws, or understandings
or conditions as to the participant's employment, in addition to those specifically provided for under the Plan. In addition, except as
otherwise provided herein (including, without limitation Section 20 hereof), a participant may defer receipt or payment of any Award
granted under this Plan, in accord with the terms of any deferred compensation plan or arrangement of the Company. The Committee shall
have the authority to retract any Award granted under the Plan in case of a material restatement of the financial statements of the Company,
or as otherwise required by law.
14. Fair
Market Value
For purposes of this Plan and any Awards granted
hereunder, Fair Market Value shall be (i) the closing price of Common Stock on the date of grant in the case of a Stock Option or
date of reference for any other Award (or on the last preceding trading date if Common Stock was not traded on such date) if Common Stock
is readily tradable on a national securities exchange or other market system or (ii) if Common Stock is not readily tradable, the
amount determined in good faith by the Committee as the fair market value of Common Stock.
15. Withholding
All payments or distributions of Awards made,
and if applicable any shares of Common Stock issued, pursuant to the Plan shall be subject to satisfaction of tax witholding pursuant
to applicable federal, state and local or foreign tax withholding requirements. If the Company proposes or is required to distribute Common
Stock pursuant to the Plan or a participant, it may require the participant receiving such Common Stock to remit to it or to the Subsidiary
that employs such participant an amount sufficient to satisfy such tax withholding requirements prior to the delivery of any certificates
for such Common Stock. In lieu thereof, the Company or the Subsidiary employing the participant shall have the right to withhold the amount
of such taxes from any other sums due or to become due from the Company or the Subsidiary, as the case may be, to the participant receiving
Common Stock, as the Committee shall prescribe. The Committee may, in its discretion, and subject to such rules as the Committee
may adopt (including any as may be required to satisfy applicable tax and/or non-tax regulatory requirements), permit a participant to
pay all or a portion of the federal, state and local or foreign withholding taxes arising in connection with any Award consisting of,
or resulting in the issuance of, shares of Common Stock, including Common Stock that is part of the Award that gives rise to the withholding
requirement, by electing to have the Company withhold shares of Common Stock having a Fair Market Value equal to the amount of tax to
be withheld, such tax calculated at rates required by statute or regulation.
16. Tenure
A participant's right, if any, to continue to
serve the Company or any of its Subsidiaries as a non-employee director, executive officer, other employee, consultant or advisor or otherwise
shall not be enlarged or otherwise affected by his or her designation as a participant under the Plan.
17. Unfunded
Plan
Participants shall have no right, title, or interest
whatsoever in or to any investments which the Company may make to aid it in meeting its obligations under the Plan. Nothing contained
in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and any participant, beneficiary, legal representative or any other person. To the extent that any person
acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of an unsecured general
creditor of the Company. All payments to be made hereunder shall be paid from the general funds of the Company and no special or separate
fund shall be established and no segregation of assets shall be made to assure payment of such amounts except as expressly set forth in
the Plan. The Plan is not intended to be subject to the Employee Retirement Income Security Act of 1974, as amended.
18. No
Fractional Shares
No fractional shares of Common Stock shall be
issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, or Awards, or other property shall
be issued or paid in lieu of fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
19. Duration,
Amendment and Termination
No Award shall be granted more than ten years
after the Effective Date; provided, however, that the terms and conditions applicable to any Award granted prior to such date may thereafter
be amended or modified by mutual agreement between the Company and the participant or such other persons as may then have an interest
therein. Also, by mutual agreement between the Company and a participant under this Plan or under any other present or future plan of
the Company, Awards may be granted to such participant in substitution and exchange for, and in cancellation of, any Awards previously
granted to such participant under this Plan, or any other present or future plan of the Company. The Board or the Committee may amend
the Plan from time to time or suspend or terminate the Plan at any time. However, no action authorized by this Section 19 shall reduce
the amount of any existing Award or change the terms and conditions thereof without the participant's consent. No amendment of the Plan
shall, without approval of the stockholders of the Company, (i) increase the total number of shares which may be issued under the
Plan or the maximum number of shares with respect to Stock Options and other Awards that may be granted to any individual under the Plan;
(ii) modify the requirements as to eligibility for Awards under the Plan; or (iii) effect the repricing of Stock Options; provided,
however, that no amendment may be made without approval of the stockholders of the Company if the amendment will disqualify any Incentive
Stock Options granted hereunder.
20. Compliance
with Section 409A of the Code
Notwithstanding anything to the contrary set forth
herein, any Award granted under this Plan that is not exempt from the requirements of Section 409A of the Code shall contain such
provisions so that such Award shall comply with the requirements of Section 409A if the Code. Such restrictions, if any, shall be
determined by the Board. For example, any deferrals of payments to any participant (whether requested by the participant of otherwise
required by the Committee) with respect to Awards under this Plan shall not be allowed except to the extent that such deferrals would
not cause the payments to fail to satisfy the requirements for nonqualified deferred compensation plans described in Section 409A
of the Code.
21. Governing
Law
This Plan, Awards granted hereunder and actions
taken in connection herewith shall be governed and construed in accordance with the laws of the State of New York (regardless of the law
that might otherwise govern under applicable New York principles of conflict of laws).
22. Severability
In case any provision of this Plan shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
23. Effective
Date
a. The Plan shall be effective as of the date
on which the Plan is approved by the stockholders of the Company at an annual meeting or any special meeting of stockholders of the Company
(the "Effective Date") and such approval of stockholders shall be a condition to the right of each participant to receive Awards
hereunder.
b. This Plan shall terminate on the 10th anniversary
of the Effective Date (unless sooner terminated by the Board).
Exhibit 5.1
WIGGIN AND DANA LLP
281 Tresser Boulevard
Stamford, CT 06901
203-363-7600 (Phone)
203-363-7676 (Fax)
August 23, 2024
Hudson Technologies, Inc.
300 Tice Boulevard, Suite 290
Woodcliff Lake, New Jersey 07677
Ladies and Gentlemen:
We refer to the Registration Statement on Form
S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission under the Securities Act of 1933,
as amended (the “Act”), on behalf of Hudson Technologies, Inc. (the “Company”), relating to 3,000,000 shares
of the Company’s Common Stock, $0.01 par value per share (the “Shares”), to be issued under the Company’s 2024
Stock Incentive Plan (the “Plan”).
As counsel for the Company, we have examined such
corporate records, other documents, and such questions of law as we have considered necessary or appropriate for the purposes of this
opinion and, upon the basis of such examination, advise you that in our opinion, any original issuance Shares distributed pursuant to
the Plan being registered pursuant to the Registration Statement, when issued and paid for under the Plan in accordance with the terms
of the Plan, will be legally issued, fully paid and non-assessable.
This opinion set forth herein is limited to the
laws of the State of New York and the federal laws of the United States.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is
required to be filed with the Registration Statement under the provisions of the Act.
Very truly yours,
/s/ WIGGIN AND DANA LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
Hudson Technologies, Inc.
Woodcliff Lake, New Jersey
We hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 14, 2024, relating to the consolidated financial statements and
the effectiveness of internal control over financial reporting, of Hudson Technologies Inc. (the Company) appearing in
the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.
/s/ BDO USA, P.C.
Stamford, CT
August 23, 2024
Exhibit 107
CALCULATION OF FILING FEE TABLE
FORM S-8
(Form Type)
HUDSON TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its
Charter)
Table 1 – Newly Registered Securities
Security
Type |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
| Equity |
Common
Stock, $0.01 par value per share |
457(c)
and 457(h) |
3,000,000 |
$8.03(2) |
$24,090,000.00 |
0.0001476 |
$3,555.69 |
| Total
Offering Amounts |
|
$24,090,000.00 |
|
$3,555.69 |
| Total
Fee Offsets |
|
|
|
$--- |
| Net
Fees Due |
|
|
|
$3,555.69 |
(1) Pursuant to Rule 416(a) of the Securities
Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the
Registrant’s common stock that become issuable under the Registrant’s 2024 Stock Incentive Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results
in an increase in the number of shares of outstanding common stock.
(2) Estimated in accordance with Rule 457(c)
and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $8.03 per share, which is the
average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Capital Market on August 19, 2024.
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