AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 20,
2008
Registration
No. 333-151318
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Pre-Effective
Amendment No.
2
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
NEW
GENERATION BIOFUELS HOLDINGS, INC.
(
Exact
name of registrant as specified in its charter)
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Florida
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26-0067474
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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1000
Primera Boulevard, Suite 3130,
Lake
Mary, Florida 32746
(443)
535-8660
(Address,
including zip code , and telephone number, including area code, of registrant’s
principal executive offices)
Cary
J. Claiborne
Chief
Financial Officer and Secretary
New
Generation Biofuels Holdings, Inc.
1000
Primera Boulevard,
Suite
3130
Lake
Mary, Florida 32746
(443)
535-8660
(Name,
address including zip code , and telephone number, including area code , of
agent for service)
Copy
to:
Steven
M. Kaufman, Esq.
Hogan
& Hartson LLP
555
Thirteenth Street N.W.
Washington,
DC 20004
Tel:
(202) 637-5600
Approximate
date
of
commencement of proposed sale to the public:
As
soon as practicable after the effective date of this
Registration
Statement
and
from time to time thereafter.
If
the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
o
If
any of
the securities being registered on this form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
o
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
o
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
o
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 13b-2 of the Exchange Act. (Check One)
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Large
accelerated filer
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o
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Accelerated
Filer
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o
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Non-accelerated
filer
(Do
not check if a smaller reporting company)
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o
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Smaller
reporting company
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x
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CALCULATION
OF REGISTRATION FEE
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Title
of each class of
securities
to be registered
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Amount
being registered
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Proposed
maximum offering price per share
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Proposed
maximum aggregate offering price
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Amount
of registration
fee
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Common
stock, par value $0.001 per share (1)
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885,072
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$
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5.93(2
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)
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$
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5,248,476.96
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$
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206.27
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Common
stock, par value $0.001 per share (3)
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950,357
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$
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5.25(4
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)
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$
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4,989,374.25
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$
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196.08
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Common
stock, par value $0.001 per share (5)
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100,000
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0.001(6)
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100.00
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0.01
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Total
Registration Fee
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$
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402.35
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(7)
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(1)
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Represents
presently outstanding shares of common stock held by the selling
stockholders.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant
to
Rule 457(c) under the Securities Act of 1933, as amended, based
upon the
average of the high and low prices as reported on the American
Stock
Exchange on May 27, 2008.
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(3)
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Represents
shares of common stock issuable upon the exercise of warrants
at a price
of $5.25.
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(4)
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Calculated
pursuant to Rule 457(g).
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(5)
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Represents
shares of common stock issuable upon the exercise of warrants
at a price
of $0.001.
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(6)
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Calculated
pursuant to Rule 457(g).
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(7)
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The
Company previously paid $411.10 based on the registration of
1,828,686
shares of common stock. Due to an increase in the number of shares
underlying warrants that the Company is registering and sales
pursuant to
Rule 144, the Company is now registering 1,935,429, resulting
in a credit
of $8.75 available to apply to future registration
fees.
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THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A
FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
T
he
information in this prospectus is not complete and may be changed. Our selling
stockholders may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities, and it is not soliciting offers to
buy
these securities in any state where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED AUGUST __, 2008
NEW
GENERATION BIOFUELS HOLDINGS, INC.
1,935,429
Shares
Common
Stock
This
prospectus relates to the sale of up to
1,935,429
shares
of
our common stock by the non-affiliate selling stockholders listed in this
prospectus. The shares offered by this prospectus relate to securities issued
in
a private placement completed in December 2007 and warrants issued to
certain selling stockholders and include:
·
885,072
presently
outstanding shares of common stock held by non-affiliate selling stockholders;
and
·
1,050,357
shares of common stock issuable upon exercise of warrants to purchase common
stock.
The
registration of shares covered by this prospectus does not necessarily mean
that
any of the shares will be offered or sold by the selling stockholders. The
timing and amount of sale are within the sole discretion of the selling
stockholders. These shares may be sold by the selling stockholders from time
to
time on the American Stock Exchange or on any national securities exchange or
automated interdealer quotation system on which our common stock is then listed
or quoted, through negotiated transactions or otherwise, at market prices
prevailing at the time of sale or at negotiated prices.
The
distribution of the shares by the selling stockholders is not subject to any
underwriting agreement. We will receive none of the proceeds from the sale
of
the shares by the selling stockholders, except upon exercise of the warrants.
We
will bear all expenses of registration incurred in connection with this
offering, but the selling stockholders will bear all selling and other expenses
incurred by them.
Our
common stock began trading on the American Stock Exchange on April 15, 2008
under the symbol “GNB.” On August 15, 2008, there were 18,890,455 shares of our
common stock outstanding. On August 15, 2008, the closing price of our common
stock on the American Stock Exchange was $4.99 per share.
We
may
amend or supplement this prospectus from time to time by filing amendments
or
supplements as required. You should read this entire prospectus and any
amendments or supplements carefully before you make your investment
decision.
___________________________________
Investing
in these securities involves a high degree of risk. Please carefully review
the
section entitled “Risk Factors” beginning on page 6 and the risk factors
that are incorporated by reference in this prospectus from our Annual Report
on
Form 10-K for the year ended December 31, 2007 and Quarterly Report on Form
10-Q
for the quarter ended June 30, 2008.
___________________________________
The
shares have not been registered under the securities laws of any state or other
jurisdiction as of the date of this prospectus. Brokers or dealers should
confirm the existence of an exemption from registration or effectuate such
registration in connection with any offer and/or sale of the shares.
___________________________________
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or passed upon the adequacy or
accuracy or this prospectus. Any representation to the contrary is a criminal
offense.
___________________________________
In
considering the acquisition of the common stock described in this prospectus,
you should rely only on the information contained in this
prospectus. We have not authorized anyone to provide you with
information different from that contained in this prospectus. The
information contained in this prospectus is complete and accurate only as of
the
date on the front cover of this prospectus, regardless of the time of delivery
of this prospectus or of any sale of the shares of common stock.
___________________________________
The
date of this prospectus is August ___, 2008.
TABLE
OF CONTENTS
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Page
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ABOUT
THIS PROSPECTUS
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2
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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2
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SUMMARY
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3
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RISK
FACTORS
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6
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USE
OF PROCEEDS
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7
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DERTERMINATION
OF OFFERING PRICE
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8
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SELLING
STOCKHOLDERS
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8
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PLAN
OF DISTRIBUTION
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9
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LEGAL
MATTERS
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12
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EXPERTS
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12
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WHERE
YOU CAN FIND MORE INFORMATION
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12
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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13
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ABOUT
THIS PROSPECTUS
We
have
filed with the Securities and Exchange Commission (the “SEC”) a registration
statement on Form S-3, of which this prospectus is a part, under the Securities
Act of 1933, as amended (the “Securities Act”), with respect to the offered
shares. This prospectus does not contain all of the information set forth in
the
registration statement, portions of which we have omitted as permitted by the
rules and regulations of the SEC. Statements contained in this prospectus as
to
the contents of any contract or other document are not necessarily complete.
You
should refer to the copy of each contract or document filed as an exhibit to
or
incorporated by reference into the registration statement for a complete
description.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains “forward-looking statements” within the meaning of the
Private Securities Litigation Reform Act of 1995 that involve numerous
assumptions, risks and uncertainties, many of which are beyond our control.
Our
actual results could differ materially from anticipated results. Important
factors that may cause actual results to differ from projections include without
limitation:
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our
lack of operating history;
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our
dependence on additional financing;
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our
inability to generate revenues from sales of our biofuel and to
establish
production facilities;
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our
inability to enter into acceptable sublicensing agreements with
respect to
our technology or the inability of any sublicensee to successfully
manufacture, market or sell biofuel utilizing our licensed
technology;
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our
inability to compete effectively in the renewable fuels
market;
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governmental
regulation and oversight, including whether or not we are able
to obtain
the governmental approvals necessary to allow our biofuel to be
marketed
as “bio-diesel,” or as a new class of biofuel;
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market
acceptance of our biofuel;
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unexpected
costs and operating deficits;
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adverse
results of any material legal proceedings; and
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other
specific risks set forth or incorporated by reference under the
heading
“Risk Factors” beginning on page 6 of this
report.
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All
statements that are not clearly historical in nature regarding our strategy,
future operations, financial position, prospects, plans and management
objectives are forward-looking statements. When used in this report, the words
“will,” “may,” “believe,” “anticipate,” “intend,” “estimate,” “expect,”
“project,” “plan” and similar expressions generally are intended to identify
forward-looking statements, although not all forward-looking statements contain
such identifying words. All forward-looking statements are based on information
available at the time the statement was made. We undertake no obligation to
update any forward-looking statements or other information contained in this
report as a result of new information, future events or otherwise. You should
not place undue reliance on these forward-looking statements. Although we
believe that our plans, intentions and expectations reflected in or suggested
by
the forward-looking statements are reasonable, these plans, intentions or
expectations may not be achieved.
References
in this prospectus to “New Generation
Biofuels Holdings, Inc.,” “we,” “us” and “our” are to New Generation Biofuels
Holdings, Inc.
SUMMARY
You
should read the following summary together with the more detailed information
contained elsewhere in this prospectus, including the section titled “Risk
Factors,” regarding us and the common stock being sold in this
offering.
Our
Business
We
are a
development stage renewable fuels provider. We hold an exclusive license for
North America, Central America and the Caribbean to commercialize proprietary
technology to manufacture alternative biofuels from vegetable oils and animal
fats that we intend to market as a new class of biofuel for power generation,
heavy equipment use, marine use and as a heating fuel. We believe our
proprietary biofuel can provide a cheaper, renewable alternative energy source
with significantly lower emissions than traditional fuels.
In
March
2006, we acquired the rights to our proprietary technology through an exclusive
license agreement with the inventor of the technology, Ferdinando
Petrucci. Under the license agreement, we are required to pay $6.0
million over the next six years, with the next $1.0 million payment due in
March
2009. Compared to current methods used in the production of
bio-diesel fuel, we believe that this proprietary technology is a substantially
less complex and less expensive process.
We
are
pursuing direct sales of our biofuel produced at manufacturing plants that
we
may purchase or build, either directly or through joint ventures. To obtain
these sales, we are pursuing test burn programs with a number of energy
producers to validate our biofuel.
In
2007,
we conducted three successful test burns of our biofuel for power generation
applications at an Oakland, California combustion turbine facility operated
by
Dynegy, a wholesale power generation provider. Results indicated that there
were
no shortfalls in engine output and nitrogen oxide emissions were significantly
lower with our biofuel than when firing distillate fuel oil. In September 2007,
we completed our first test burn by initially firing the turbines using
distillate fuel oil, then switching to our biofuel. In November 2007, we
completed the second test burn that focused on the capabilities of our hybrid
formulation, which is designed for customer applications where a higher flash
point product is required. In December 2007, we completed the third test burn,
where we used a formulation made from recycled vegetable oil.
After
several successful test burns of our biofuel, in June 2008, we entered into
our
first biofuel sales agreement with Dynegy. The agreement provides for Dynegy
to
purchase up to 1.7 million gallons of biofuel per year for use at Dynegy’s power
plant in Oakland, California, based on Dynegy’s forecasts of a portion of the
historical fuel consumption at their facility. There is no minimum purchase
requirement. The product price is based on a variable pricing formula. The
contract contemplates purchases of our “Classic” product formula based on
refined vegetable oil but allows us the flexibility to produce the fuel from
any
feedstock as long as the product meets certain specifications. The contract
is
for a term until March 31, 2010 and from month to month thereafter, unless
terminated by either party at any time with at least sixty (60) days’ written
notice. Based on current prices and terms, we anticipate that the contract
could
generate up to $13 million in sales over the next two years.
In
December 2007, we entered into a test burn agreement with Mirant Energy Trading
to evaluate our proprietary biofuel in power generation applications. The test
burn agreement requires us to supply our biofuel for a test program that will
be
performed by Mirant. The test program will include the evaluation of both
technical and environmental performance characteristics of our biofuel. The
test
burn agreement also requires us to pay 50% of all costs of environmental
emissions testing conducted in connection with the test program, up to a maximum
of $150,000. In February 2008, we conducted our first of three test burns at
one
of Mirant’s power generation facilities in Maryland. If the testing is
successful, both parties intend to negotiate a mutually agreeable purchase
agreement for our biofuel.
In
November 2007, we entered into a vehicle test program with the City of Orlando,
Florida to demonstrate the capabilities of our proprietary biofuel in fleet
vehicle applications. The test program, to be carried out over several months,
will be conducted using a vehicle in the City’s truck fleet and will include a
comprehensive series of performance and tailpipe emissions tests.
In
March
2008, we entered into a test burn agreement with FirstEnergy Corporation to
evaluate our proprietary biofuel technology in power generation
applications. Under the agreement, we and FirstEnergy contemplate conducting
three full and partial load test burns that may consume approximately 30,000
gallons of our biofuel at FirstEnergy’s combustion turbine power plant in
Lorain, Ohio. The tests will evaluate both the technical and environmental
performance characteristics of the our biofuel. We will supply and deliver
the
biofuel to the testing site and are obligated to pay 50% of all costs of
environmental emissions testing conducted in connection with the test program,
up to a maximum of $15,000. FirstEnergy is entitled to all revenue arising
from
sales of electricity generated during the testing. If the testing is successful,
both parties intend to negotiate a mutually agreeable purchase agreement for
our
biofuel.
In
August
2007, we placed into service our first biofuel production plant, a 3 million
gallon per year pilot facility, jointly developed with Twin Rivers Technologies
and co-located at Twin Rivers’ facility in Cincinnati, Ohio. We are leasing the
equipment used at the plant but own all rights to the fuel produced at the
facility. The facility will be used initially to manufacture fuel for our
application testing program and then later for early commercial sales until
a
full-scale production plant is completed. In March 2007, we entered into a
letter of intent with Twin Rivers Technologies to potentially develop a
production plant at Twin Rivers’ facility located in Quincy, Massachusetts. The
letter of intent contemplates a period during which we will negotiate with
Twin Rivers regarding definitive agreements covering the siting, construction,
operation and management of our proposed initial 25 million gallon per year
production facility and covering the supply of vegetable oils and other
commodity feedstocks and the off take of finished biofuel by Twin Rivers from
the facility. We began discussions with Twin Rivers in the second half of
2007.
We
also
have commenced the process of procuring raw materials for production of our
biofuel but have not made any significant commitments or procurements at this
point. As a second potential revenue stream, our business plan contemplates
collecting royalties through sublicensing our proprietary technology where
it is
more efficient for manufacturers to produce our biofuel at their own plants
rather than requiring production at our proposed facilities. We also are
actively pursuing our eligibility and qualification for tax credits and other
government incentives to strengthen the competitive position of our biofuel.
We
have
fully funded our operating budget for 2008. However, we intend to raise
additional financing during 2008 to fund subsequent operating budgets and
long
term business growth objectives,
if
such
financing is available on favorable terms
.
As
a
development stage company, our business also involves a high degree of risk,
as
described in more detail in “Risk Factors” beginning on page 6,
including:
·
our
early
stage and lack of revenues,
·
our
need
for significant additional capital to fund our operations, and
·
the
lack
of current market acceptance of our proprietary technology and
product.
About
this Offering
This
prospectus relates to the offering of up to 1,935,429 shares of our common
stock
by the non-affiliate selling stockholders listed in this prospectus,
representing, as of August 15, 2008, approximately 10.2% of our total
outstanding common stock. The shares offered by this prospectus relate to
shares
of common stock and warrants issued in a private placement in December 2007
and
an amended warrant issued in connection with a settlement agreement with
a
former consultant in August 2008, including:
·
885,072
presently outstanding shares of common stock held by non-affiliate selling
stockholders, including 53,229 shares issued as penalty shares in connection
with registration rights agreements between the company and the investors;
and
·
1,050,357
shares of common stock issuable upon exercise of warrants to purchase
common
stock, including 887,143 shares underlying warrants issued to investors
in the
December 2007, 63,214 shares underlying warrants issued as commissions
to our
placement agents and 100,000 shares underlying a warrant issued to
Media
Relations Strategy, Inc. in connection with a settlement
agreement.
December
2007 Private Placement
On
December 14, 2007, we completed the first round of a private placement of
815,000 shares of our common stock at a price of $3.50 per share to “accredited
investors” as defined under the Securities Act. The gross proceeds from the
first round of the offering were $2,852,500. On December 21, 2007, we completed
the second round of a private placement of 72,143 shares of our common stock
at
a price of $3.50 per share to “accredited investors.” The gross proceeds from
the second closing were $252,501. In both rounds of financing, we sold a total
of 887,143 shares of our common stock and issued warrants to purchase 887,143
shares of our common stock for total gross proceeds of $3,105,001.
44,300
of
these shares are not being registered and offered by this prospectus since
they
have been sold by two of our selling stockholders under Rule
144.
In
addition to shares of our common stock, each investor in the offering also
received a warrant exercisable for a number of shares of our common stock equal
to the number of shares purchased by each investor. The initial exercise price
of the warrants is $5.25 per share. The warrants are exercisable at any time
after the six month anniversary of the issue date but prior to the fifth
anniversary of the issue date.
We
also
entered into registration rights agreements with each investor. Under these
agreements, we are required to (a) file a “resale” registration statement with
the SEC covering the shares issued on or before the 30th day following
the
closing of the private placement and (b) to ensure that the “resale”
registration statement covering the shares issued goes effective on or
before
the 180
th
day
following the closing of the private placement, and we are obligated to
pay
penalty shares in the amount of 1% of the shares issued for each full 30
day
period that we fail to file the registration statement or that we fail
to go
effective on the “resale” registration statement, not to exceed an aggregate of
6%. Because we failed to file the registration statement or go effective
on the
registration statement before these deadlines, we incurred penalties and
issued
53,589 additional shares of common stock to investors in the private placement,
amounting to the maximum of 6% of the shares issued in the December private
placement.
For
services as placement agent in connection with the offering, we paid Empire
Financial Group, Inc. (now known as Jesup & Lamont Securities Corp.) and
certain of its principals $154,875 in cash and issued warrants
exercisable for 63,214 shares of common stock on the same terms as the warrants
issued to other investors in the offering.
For
more
information about the December 2007 private placement, see our Annual Report
on
Form 10-K for the year ended December 31, 2007.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. You
should carefully consider the following material risks and those incorporated
by
reference from our Annual Report on Form 10-K for the year ended December
31,
2007 and Quarterly Report on Form 10-Q for the quarter ended June 30, 2008
together with the other information contained in this prospectus, before
you
decide to buy our common stock. If any of the following risks
actually occur, our business, results of operations and financial condition
would likely suffer. In these circumstances, the market price of our
common stock could decline, and you may lose all or part of your
investment.
Risks
Related to Our Business
We
may never fully realize the value of our technology license agreement,
which
presently is our principal asset.
We
may
not be successful in realizing the expected benefits from our master
license
agreement, which represented over 80% of our total assets as of December
31,
2007. We have not yet generated any revenues or cash flows from our biofuel
and
do not expect to begin to amortize the license agreement until we recognize
revenues from the technology at the end of 2008 at the earliest. Further,
we
initially intended to use the licensed technology to generate our expected
revenues without any significant modification, but we have conducted
significant
additional research and development to modify the basic fuel technology
to meet
market demands for particular fuel attributes. As of June 30, 2008, we
have
incurred approximately $1,206,222 in research and development separate
from our
license payments, and we are continuing to incur additional research
and
development costs to optimize our fuels to test different feedstocks
and to
tailor the fuel energy output, emissions and other specifications to
the
specific needs of potential customers.
Risks
Related to Our Common Stock
Our
Series B preferred stock and warrants issued in our March and May
2008 private placements include antidilution provisions that, if triggered,
could dilute the ownership interests of our existing common
stockholders.
Both
the
Series B preferred stock and the warrants issued in our March and May 2008
private placements include antidilution provisions that, if triggered, would
result in the issuance of additional shares that would dilute the interests
of existing common stockholders. These antidilution provisions will apply
if we issue equity in certain capital-raising transactions for a price
below the $4.25 conversion price of the Series B preferred stock or the $6.25
exercise price of the warrants within the first to occur of one year
from the date of registration of the underlying common stock from our March
2008
private placement or 18 months from March 31, 2008 for our March 2008
private placement and within the first to occur of one year from the date
of registration of the underlying common stock from our May 2008 private
placement or 18 months from May 13, 2008 for our May 2008 private
placement. If these provisions are triggered, the conversion price of the
Series
B preferred stock or the exercise price of the warrants would be adjusted
downward, but not below a floor of $3.00 per share. Any sales of additional
equity that trigger these antidilution provisions could be disproportionately
dilutive and adversely affect the prevailing market prices of our common
stock.
The existence of conversion features also may result in short selling of
our common stock that may further depress the market price.
If
we do not meet the American Stock Exchange (AMEX) requirements for continued
listing, our common stock may be delisted which could negatively impact our
stock’s liquidity.
Under
AMEX listing rules, our common stock could be delisted from AMEX if we do
not
meet certain standards regarding our financial condition and operating results
(including, among other factors, maintaining adequate stockholders’ equity and
market capitalization and minimizing losses from continuing operations over
multiple years), the distribution of our publicly held securities and compliance
with AMEX listing agreements and SEC rules and regulations. If our securities
are delisted from AMEX, they likely will be quoted again for trading on the
OTC
Bulletin Board which may depress demand for our shares and limit market
liquidity due to the reluctance or inability of certain investors to buy
stocks
on the OTC Bulletin Board. Consequently, an investor may find it more difficult
to trade our securities, which may adversely affect the ability to resell
securities purchased from the selling stockholders.
A
significant number of our shares are eligible for sale, and their sale could
depress the market price of our common stock.
Sales
of a significant number of shares of our common stock in the public market
could
depress the market price of our common stock. In 2007, we registered
on currently effective registration statements a total of 11,173,050 shares
of
our common stock held by non-affiliate selling stockholders that are now
eligible for trading in the public market, including shares issuable upon
conversion or exercise of rights to purchase that are not currently outstanding.
In 2008, we are seeking to register on pending registration statements
an
additional 4,916,181 shares of our common stock held by non-affiliate selling
stockholders in connection with private placements of our Series B convertible
preferred stock and warrants that closed in December 2007 and March and
May
2008. Many of the shares sold to selling stockholders listed in these
registration statements were offered by the Company at prices less than
the
recent market price of the Company’s common stock, which closed on AMEX on
August 12, 2008 at $4.65 per share. In addition, we may be obligated to
register
shares held by Xethanol to facilitate the spinoff to Xethanol’s stockholders of
the shares of our common stock issued to Xethanol in the reverse merger.
Such
registration would make 5,490,000 additional shares of our common stock
eligible
for trading in the public market. Some or all of these shares of common
stock
may be offered from time to time in the open market pursuant to a registration
statement or Rule 144, and these sales may depress the market price for
shares
of our common stock.
Our
common stock is thinly traded and subject to
volatility.
Although
our common stock is traded on
AMEX,
it
has traded in relatively small volumes. During the second quarter of 2008,
an
average of only about 50,000 shares traded each day. If our common stock
continues to be thinly traded, it may enhance volatility in the share price
and
make it difficult for investors to buy or sell shares in the public market
without materially affecting the quoted share price. Further, investors seeking
to buy or sell a certain quantity of our shares in the public market may
be
unable to do so within one or more trading days. If limited trading in our
stock
continues, it may be difficult for holders to sell their shares in the public
market at any given time at prevailing prices, which may limit the liquidity
of
our common stock.
USE
OF PROCEEDS
This
prospectus relates to shares of our common stock that may be offered and
sold
from time to time by the selling stockholders who will receive all of the
proceeds from the sale of the shares. We will not receive any proceeds from
the
sale of shares of common stock in this offering except upon the exercise
of
outstanding warrants. We could receive up to $4,989,474 from the cash exercise
price upon exercise of warrants held by selling stockholders. We expect to
use
the proceeds received from the exercise of the warrants, if any, for working
capital and general corporate purposes. We will bear all expenses of
registration incurred in connection with this offering, but the selling
stockholders will bear all commissions, selling and other expenses to
underwriters, agents, brokers and dealers.
DETERMINATION
OF OFFERING PRICE
This
offering is being made solely to allow the selling stockholders to offer and
sell shares of our common stock to the public. The selling stockholders may
offer for resale some or all of their shares at the time and price that they
choose. On any given day, the price per share is likely to be based on the
market price for our common stock, as quoted on the American Stock Exchange
on
the date of sale, unless shares are sold in private transactions. Consequently,
we cannot currently determine the price at which shares offered for resale
pursuant to this prospectus may be sold.
SELLING
STOCKHOLDERS
Selling
Stockholder Table
This
prospectus covers shares of our common stock, including shares currently
issued
and outstanding
(excluding
any shares sold pursuant to Rule 144 as of August 15, 2008)
and shares
underlying warrants to purchase our common stock, that we sold in a private
placement of our securities in December 2007 to “accredited investors” as
defined by Rule 501(a) under the Securities Act, pursuant to a registration
exemption under Section 4(2) of the Securities Act and shares underlying
a
warrant issued to Media Relations Strategy, Inc. pursuant to a settlement
agreement. The selling stockholders may from time to time offer and sell
under
this prospectus any or all of the shares listed opposite each of their
names
below as shown in the "Shares Offered Hereby" column. Under registration
rights
agreements with each investor in the private placement, we are required
to
register for resale the shares of our common stock described in the table
below.
We
have
prepared the table below based upon the information previously furnished
to us
by the selling stockholders and available corporate records. The selling
stockholders identified below may have sold, transferred or otherwise disposed
of some or all of their shares since the date on which the information
in the
following table is presented in transactions exempt from or not subject
to the
registration requirements of the Securities Act. Certain selling stockholders
may be deemed to be “underwriters” as defined in the Securities Act. Any profits
realized by the selling stockholder may be deemed to be underwriting
commissions. Information concerning the selling stockholders may change
from
time to time and, if necessary, we will amend or supplement this prospectus
accordingly. We cannot give an estimate as to the number of shares of common
stock that will be held by the selling stockholders upon termination of
this
offering because the selling stockholders may offer some or all of their
common
stock under the offering contemplated by this prospectus. The total number
of
shares that may be sold hereunder will not exceed the number of shares
offered
hereby. Please read the section entitled “Plan of Distribution” in this
prospectus.
As
noted
in the footnotes to the table below, we have been advised that that each
of such
selling stockholders purchased our common stock and warrants in the ordinary
course of business, not for resale, and that none of such selling stockholders
had, at the time of purchase, any agreements or understandings, directly
or
indirectly, with any person to distribute the related common stock. Unless
otherwise indicated in the footnotes to the table below, none of the selling
stockholders has or had any position, office or other material relationship
with
the company or any of its predecessors or affiliates within the past three
years.
The
following table sets forth:
|
|
·
|
the
name of each selling stockholder;
|
|
|
·
|
the
number of shares of our common stock beneficially owned by the
selling
stockholders as of August 15,
2008;
|
|
|
·
|
the
maximum number of shares of our common stock that may be offered
for the
account of the selling stockholders under this prospectus
excluding
any shares that have been sold pursuant to Rule 144
;
and
|
|
|
·
|
the
amount and percentage of common stock that would be owned by the
selling
stockholders after completion of the offering, assuming a sale
of all of
the common stock that may be offered by this
prospectus.
|
Under
SEC
rules, beneficial ownership includes any shares of common stock as to which
a
person has sole or shared voting power or investment power and any shares
of
common stock which the person has the right to acquire within 60 days through
the exercise of any option, warrant or right, through conversion of any
security
or pursuant to the automatic termination of a power of attorney or revocation
of
a trust, discretionary account or similar arrangement. Beneficial ownership
is
calculated based on 18,890,450 shares of our common stock outstanding as
of
August 15, 2008. In calculating the number of shares beneficially owned
by a
selling stockholder and the percentage ownership, shares of common stock
subject
to preferred stock conversion rights, options or warrants held by that
person
that are currently exercisable or convertible or become exercisable or
convertible within 60 days after August 15, 2008 are deemed outstanding
even if
they have not actually been exercised or converted. The shares issuable
under
these securities are treated as outstanding for computing the percentage
ownership of the person holding these securities but are not treated as
outstanding for the purpose of computing the percentage ownership of any
other
person.
|
Name of Selling Security
Holder
|
Shares
Owned Represented by Common Stock, Preferred Stock and Warrants
Before the Offering (1)
|
Shares
Offered Hereby (2)
|
Shares
Owned After the Offering (3)
|
Percentage
of Outstanding Shares Owned After the Offering
|
|
Jesup
& Lamont Securities Corp. (4)
|
166,711
|
15,171
|
90,057
|
*
|
|
Michael
R. Jacks (5)
|
232,777
|
17,700
|
87,537
|
*
|
|
William
Corbett (6)
|
247,553
|
17,700
|
87,537
|
*
|
|
Robbins
Capital Partners L.P. (7)
|
1,241,337
|
473,800
|
192,537
|
**
|
|
Theodore
Seelye (8)
|
187,781
|
123,600
|
64,181
|
*
|
|
Dr.
John Tafel (9)
|
347,250
|
206,000
|
0
|
-
|
|
CGMA
Special Accounts, LLC (10)
|
276,595
|
267,231
|
0
|
-
|
|
Capra
Global Managed Assets, Ltd. (11)
|
21,605
|
21,169
|
0
|
-
|
|
Cranshire
Capital, LP (12)
|
315,573
|
130,700
|
184,873
|
**
|
|
Harry
Mittelman Revocable Trust (13)
|
61,800
|
61,800
|
0
|
-
|
|
Iroquois
Master Fund Ltd. (14)
|
61,800
|
61,800
|
0
|
-
|
|
Gimmel
Partners (15)
|
1,637,378
|
309,000
|
363,878
|
*
|
|
Rockmore
Investment Master Fund Ltd. (16)
|
236,476
|
86,215
|
113,563
|
*
|
|
Susan
Sandberg (17)
|
30,900
|
30,900
|
0
|
-
|
|
Cliff
Henry (18)
|
12,643
|
12,643
|
0
|
-
|
|
Media
Relations Strategy, Inc. (19)
|
100,000
|
100,000
|
0
|
-
|
|
TOTAL
|
5,178,179
|
1,935,429
|
|
|
*
Less
than 1%
**Less
than 5%
(1)
May
include shares owned by the selling stockholders that are registered for
resale
on other registration statements.
(2)
Reflects the number of shares offered for resale by this prospectus on
behalf of
each selling stockholder.
(3)
Assumes that the selling stockholders have sold all of the shares offered
for
resale by this prospectus and any other prospectus that offers shares owned
by
the selling stockholders for resale.
(4)
Includes 45,237 shares of common stock issuable upon conversion of the
Series B
preferred stock and 121,474 shares of common stock underlying warrants, of
which a warrant to purchase 15,171 shares was issued as compensation
for
placement agent services rendered in connection with the December Offering.
The
address for Jesup & Lamont Securities Corp. (formerly Empire Financial
Group, Inc.) is 650 Fifth Avenue New York, NY 10019. The person with
the power
to vote and dispose of the securities held by Jesup & Lamont Securities
Corp. is James Matthew. The selling stockholder is a broker−dealer and acquired
the securities to be resold solely for the account of the selling stockholder,
and not for the account of any other person or with a view to any resale
or
distribution thereof.
(5)
Includes 26,321 shares of common stock issuable upon conversion of
the Series B
Preferred Stock and 206,456 shares of common stock underlying
warrants
,
of
which a warrant to purchase 17,700 shares was issued as compensation
for
placement agent services rendered in connection with the December
offering
.
The
selling stockholder is affiliated with a broker−dealer and acquired the
securities to be resold solely for the account of the selling stockholder,
and
not for the account of any other person or with a view to any resale
or
distribution thereof.
(6)
Includes 33,075 shares of common stock issuable upon conversion of
our Series B
preferred stock and 214,478 shares of common stock underlying
warrants
,
of
which a warrant to purchase 17,700 shares was issued as compensation
for
placement agent services rendered in connection with the December
offering
.
The
selling stockholder is affiliated with a broker−dealer and acquired the
securities to be resold solely for the account of the selling stockholder,
and
not for the account of any other person or with a view to any resale
or
distribution thereof.
(7)
Includes 518,800 shares of common stock currently outstanding, 200,000
shares of
common stock issuable upon initial conversion of our Series A preferred
stock,
160,773 shares of common stock issuable upon conversion of our Series
B
preferred stock and 361,764 shares of common stock underlying warrants. The
address for Robbins Capital Partners L.P. (“RCP”) is 100 First Stamford Place,
6th Floor East Stamford, CT 06902.
T.
Robbins Capital Management, LLC (“Management”) is the registered Investment
Adviser and the sole general partner of RCP and Todd B. Robbins (“Robbins”) is
the managing member of Management. RCP, Management and Robbins together
have
shared power to vote and dispose of the shares owned by RCP.
The selling
stockholder is not affiliated with a broker−dealer and acquired the securities
to be resold solely for the account of the selling stockholder, and not
for the
account of any other person or with a view to any resale or distribution
thereof.
(8)
Includes 63,600
shares of common stock currently outstanding, 53,593 shares of common
stock
issuable upon conversion of the Series B preferred stock and 70,588 shares
of
common stock underlying warrants. The selling stockholder is not affiliated
with
a broker−dealer and acquired the securities to be resold solely for the account
of the selling stockholder, and not for the account of any other person
or with
a view to any resale or distribution thereof.
(9)
Includes 116,000 shares of common stock currently outstanding, 87,500 shares
of
common stock issuable upon the conversion of our Series A preferred stock
and
143,750 shares of common stock underlying warrants. The selling stockholder
is
not affiliated with a broker−dealer and acquired the securities to be resold
solely for the account of the selling stockholder, and not for the account
of
any other person or with a view to any resale or distribution
thereof.
(10)
Includes 146,871 shares of common stock currently outstanding and 129,724
shares
of common stock underlying warrants. The address for CGMA Special Accounts,
LLC
is 555 Theodore Frend Ave., Suite C209 Rye, NY 10580. James R. Capra has
sole
power to vote and dispose of the securities held by CGMA Special Accounts,
LLC.
The selling stockholder is not affiliated with a broker−dealer and acquired the
securities to be resold solely for the account of the selling stockholder,
and
not for the account of any other person or with a view to any resale or
distribution thereof.
(11)
Includes 11,329 shares of common stock currently outstanding and 10,276
shares of common stock underlying warrants. The address for Capra Global
Managed
Assets, Ltd. is 555 Theodore Frend Ave., Suite C209 Rye, NY 10580. James
R.
Capra has sole power to vote and dispose of the securities held by Capra
Global
Managed Assets, Ltd. The selling stockholder is not affiliated with a
broker−dealer and acquired the securities to be resold solely for the account
of
the selling stockholder, and not for the account of any other person or
with a
view to any resale or distribution thereof.
(12)
Includes 55,700 shares of common stock currently outstanding, 154,373
shares of common stock issuable upon conversion of the Series B Preferred
Stock
and 105,500 shares of common stock underlying warrants. The address for
Cranshire Capital, L.P. (“Cranshire”) is 3100 Dundee Rd. Suite 703 Northbrook,
IL 60062. Downsview Capital, Inc. (“Downsview”) is the general partner of
Cranshire and consequently has voting control and investment discretion
over
securities held by Cranshire. Mitchell P. Kopin (“Mr. Kopin”), President of
Downsview, has voting control over Downsview. As a result, each of Mr.
Kopin,
Downsview and Cranshire may be deemed to have beneficial ownership (as
determined under Section 13 (d) of the Securities Exchange Act of 1934,
as
amended) of the shares owned by Cranshire which are being registered
hereunder.
The selling stockholder is not affiliated with a broker−dealer and acquired the
securities to be resold solely for the account of the selling stockholder,
and
not for the account of any other person or with a view to any resale
or
distribution thereof.
(13)
Includes 31,800 shares of common stock currently outstanding and 30,000
shares
of common stock underlying warrants. The address for Harry Mittelman Revocable
Living Trust is 12100 Kate Drive Los Altos Hills, CA. 94022. Harry Mittelman
and
Brenda Mittleman have the power to vote and dispose of the securities held
by
the Harry Mittelman Revocable Trust. The selling stockholder is not affiliated
with a broker−dealer and acquired the securities to be resold solely for the
account of the selling stockholder, and not for the account of any other
person
or with a view to any resale or distribution thereof.
(14)
Includes 31,800 shares of common stock currently outstanding and 30,000
shares
of common stock underlying warrants. The address for Iroquois Master Fund
Ltd.
is 641 Lexington Ave. 26th Floor New York, NY 10022. Joshua Silverman has
the
power to vote and dispose of the securities held by Iroquois Master Fund
Ltd.
Mr. Silverman disclaims beneficial ownership of these shares. The selling
stockholder is not affiliated with a broker−dealer and acquired the securities
to be resold solely for the account of the selling stockholder, and not
for the
account of any other person or with a view to any resale or distribution
thereof.
(15)
Includes
836,200 shares of common stock currently outstanding, 125,000 shares
of common
stock issuable upon initial conversion of our Series A preferred stock,
303,678
shares of common stock issuable upon conversion of our Series B preferred
stock
and 372,500 shares of common stock underlying warrants. The address for
Gimmel
Partners, LP is 767 3rd Ave. New York, NY 10017. Alan Weichselbaum has
the power
to vote and dispose of the securities held by Gimmel Partners, LP. The
selling
stockholder is not affiliated with a broker−dealer and acquired the securities
to be resold solely for the account of the selling stockholder, and not
for the
account of any other person or with a view to any resale or distribution
thereof.
(16)
Includes 65,770
shares of common stock currently outstanding, 94,828 shares of common
stock
issuable upon conversion of the Series B preferred stock and 75,878 shares
of
common stock underlying warrants. The address for Rockmore Investment
Master
Fund Ltd. is 150 East 58th Street, 28
th
Floor
New York, NY 10155. Rockmore Capital, LLC (“Rockmore Capital”) and Rockmore
Partners, LLC (“Rockmore Partners”), each a limited liability company formed
under the laws of the State of Delaware, serve as the investment manager
and
general partner, respectively, to Rockmore Investments (US) LP, a Delaware
limited partnership, which invests all of its assets through Rockmore
Investment
Master Fund Ltd., an exempted company formed under the laws of Bermuda
(“Rockmore Master Fund”). By reason of such relationships, Rockmore Capital and
Rockmore Partners may be deemed to share dispositive power over the shares
of
our common stock owned by Rockmore Master Fund. Rockmore Capital and
Rockmore
Partners disclaim beneficial ownership of such shares of our common stock.
Rockmore Partners has delegated authority to Rockmore Capital regarding
the
portfolio management decisions with respect to the shares of common stock
owned
by Rockmore Master Fund and, as of May 27, 2008, Mr. Bruce T. Bernstein
and Mr.
Brian Daly, as officers of Rockmore Capital, are responsible for the
portfolio
management decisions of the shares of common stock owned by Rockmore
Master
Fund. By reason of such authority, Messrs. Bernstein and Daly may be
deemed to
share dispositive power over the shares of our common stock owned by
Rockmore
Master Fund. By reason of such authority, Messrs. Bernstein and Daly
may be
deemed to share dispositive power over the shares of our common stock
owned by
Rockmore Master Fund. Messrs. Bernstein and Daly disclaim beneficial
ownership
of such shares of our common stock and neither of such persons has any
legal
right to maintain such authority. No other person has sole or shared
voting or
dispositive power with respect to the shares of our common stock as those
terms
are used for purposes under Regulation 13D-G of the Securities Exchange
Act of
1934, as amended. No person or “group” (as that term is used in Section 13(d) of
the Securities Exchange Act of 1934, as amended, or the SEC’s Regulation 13D-G)
controls Rockmore Master Fund. The selling stockholder is not affiliated
with a
broker−dealer and acquired the securities to be resold solely for the account
of
the selling stockholder, and not for the account of any other person
or with a
view to any resale or distribution thereof.
(17)
Includes 15,900 shares of common stock currently outstanding and 15,000
shares
of common stock underlying warrants. The selling stockholder is not affiliated
with a broker−dealer and acquired the securities to be resold solely for the
account of the selling stockholder, and not for the account of any other
person
or with a view to any resale or distribution thereof.
(18)
Includes 12,643 shares of common stock underlying warrants
,
of
which a warrant to purchase 12,643 shares was issued as compensation
for
placement agent services rendered in connection with the December
offering
.
The
selling stockholder is not affiliated with a broker−dealer and acquired the
securities to be resold solely for the account of the selling stockholder,
and
not for the account of any other person or with a view to any resale
or
distribution thereof.
(19)
Includes 100,000 shares of common stock underlying warrants exercisable
at a
price of $0.001 per share issued to Media Relations Strategy, Inc. pursuant
to a
settlement agreement. The address for Media Relations Strategy, Inc.
is 21157
Ormond Ct. Boca Raton, FL 33433. Martin Goldberg has sole power to
vote and dispose of the securities held by Media Relations Strategy,
Inc. The
selling stockholder is not affiliated with a broker−dealer and acquired the
securities to be resold solely for the account of the selling stockholder,
and
not for the account of any other person or with a view to any resale
or
distribution thereof.
PLAN
OF DISTRIBUTION
Distribution
by Selling Stockholders
This
prospectus relates to shares of our common stock held by the selling
stockholders. Each selling stockholder of the common stock and any of their
pledgees, assignees and successors-in-interest may, from time to time, sell
any
or all of their shares of common stock through the American Stock Exchange,
any
market or trading facility on which the shares are traded or in private
transactions. These sales may be at fixed or negotiated prices. A
selling stockholder may use any one or more of the following methods when
selling shares:
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers,
|
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction,
|
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account,
|
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange,
|
|
|
·
|
privately
negotiated transactions,
|
|
|
·
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part,
|
|
|
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number
of such
shares at a stipulated price per
share,
|
|
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise,
|
|
|
·
|
a
combination of any such methods of sale,
or
|
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders also may sell shares under Rule 144 under the Securities
Act of 1933, as amended, if available, rather than under this
prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this prospectus, in the case of
an
agency transaction not in excess of a customary brokerage commission in
compliance with NASDR Rule 2440; and in the case of a principal transaction
a
markup or markdown in compliance with NASDR IM-2440.
In
connection with the sale of the common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders also may sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The
selling stockholders also may enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares may be considered “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
Because
selling stockholders may be considered “underwriters” within the meaning of the
Securities Act, they will be subject to the prospectus delivery requirements
of
the Securities Act including Rule 172 thereunder. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting in
connection with the proposed sale of the shares by the selling
stockholders.
We
agreed
to keep this prospectus effective until all securities registered under the
registration statement have been sold or are otherwise able to be sold pursuant
to Rule 144 under the Securities Act, without regard to volume limitations,
provided we comply with our reporting obligations. The shares will be
sold only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the shares
may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934,
any
person engaged in the distribution of the shares may not simultaneously engage
in market making activities with respect to the common stock for the applicable
restricted period, as defined in Regulation M, prior to the commencement of
the
distribution. In addition, the selling stockholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases
and
sales of shares of the common stock by the selling stockholders or any other
person. We will make copies of this prospectus available to the
selling stockholders and will inform them of the need to deliver a copy of
this
prospectus to each purchaser at or prior to the time of the sale (including
by
compliance with Rule 172 under the Securities Act).
We
are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares. We have agreed to indemnify the selling
stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
The
selling stockholders may offer all of the shares of common stock for
sale. Further, because it is possible that a significant number of
shares could be sold at the same time under this prospectus, such sales, or
that
possibility, may depress the market price of our common stock. We
cannot assure you, however, that any of the selling stockholders will sell
any
or all of the shares of common stock they may offer.
Transfer
Agent
The
transfer agent and registrar for our common stock is:
Olde
Monmouth Stock Transfer Co., Inc.
200
Memorial Parkway
Atlantic
Highlands, NJ 07716.
www.oldemonmouth.com
(732) 872-2727
We
serve
as warrant agent for our warrants.
Provisions
of Florida Law
We
are
governed by two Florida statutes that may deter or frustrate takeovers
of
Florida corporations. The Florida Control Share Act generally provides
that
shares acquired in a “control share acquisition” will not possess any voting
rights unless such voting rights are approved by a majority of the corporation’s
disinterested shareholders. A “control share acquisition” is an acquisition,
directly or indirectly, by any person of ownership of, or the power to
direct
the exercise of voting power with respect to, issued and outstanding “control
shares” of a publicly held Florida corporation. “Control shares” are shares,
which, except for the Florida Control Share Act, would have voting power
that,
when added to all other shares owned by a person or in respect to which
such
person may exercise or direct the exercise of voting power, would entitle
such
person immediately after acquisition of such shares, directly or indirectly,
alone or as part of a group, to exercise or direct the exercise of voting
power
in the election of directors within any of the following ranges: (1) at
least
20% but less than 33−1/3% of all voting power; (2) at least 33−1/3% but less
than a majority of all voting power; or (3) a majority or more of all voting
power. The Florida Affiliated Transactions Act generally requires
supermajority approval by disinterested shareholders of certain specified
transactions between a public corporation and holders of more than 10%
of the
outstanding voting shares of the corporation (or their
affiliates).
Florida
law and our Bylaws also authorize us to indemnify our directors, officers,
employees and agents under certain circumstances. In addition,
Florida law presently limits the personal liability of corporate directors
for
monetary damages, except where the directors (i) breach their fiduciary
duties
and (ii) such breach constitutes or includes certain violations of criminal
law,
a transaction from which the directors derived an improver personal benefit,
certain unlawful distributions or certain other reckless, wanton or willful
acts
or misconduct.
LEGAL
MATTERS
Hogan
& Hartson LLP, 555 Thirteenth Street N.W., Washington, DC
20004, will pass upon the validity of the shares of common stock offered in
this prospectus.
EXPERTS
The
consolidated balance sheets as of December 31, 2007 and 2006 and
the related consolidated statements of operations, stockholders’ equity, and
cash flows for the year ended December 31, 2007, for the period from February
28, 2006 (inception) to December 31, 2006, and for the period from February
28, 2006 (inception) to December 31, 2007 incorporated in this prospectus
by
reference from our Annual Report on Form 10-K for the year ended
December 31, 2007 and 2006 have been audited by Imowitz Koenig & Co.,
LLP, an independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference, and has been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. Here are ways you can review and obtain copies of this
information:
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What
is Available
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Where
to Get it
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|
Paper
copies of information
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SEC’s
Public Reference Room
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|
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|
100
F Street, N.E.
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|
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Washington, D.C.
20549
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On-line
information, free of charge
|
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SEC’s
Internet website at
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www.sec.gov
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Information
about the SEC’s Public Reference Room
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Call
the SEC at 1-800-SEC-0330
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We
have
filed with the SEC a registration statement under the Securities Act, that
registers the distribution of these securities. The registration statement,
including the attached exhibits and schedules, contains additional relevant
information about us and the securities. This prospectus does
not
contain all of the information set forth in the registration statement. You
can
get a copy of the registration statement, at prescribed rates, from the sources
listed above. The registration statement and the documents referred to below
under “Incorporation of Certain Information by Reference” are also available on
our Internet website,
www.newgenerationbiofuels.com
,
under
“Recent Company Filings.” Information contained on our internet website does not
constitute a part of this prospectus. You can also obtain these documents
from
us, without charge (other than exhibits, unless the exhibits are specifically
incorporated by reference), by requesting them in writing or by telephone
at the
following address:
New
Generation Biofuels Holdings, Inc.
Attn:
Cary J. Claiborne
1000
Primera Boulevard, Suite 3130
Lake
Mary, Florida 32746
(443)
535-8660
Internet
Website:
www.newgenerationbiofuels.com
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC
allows us to “incorporate by reference” information into this prospectus. This
means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information incorporated
by
reference is considered to be a part of this prospectus, except for any
information that is superseded by other information that is included in or
incorporated by reference into this document. We incorporate by reference each
of the documents listed below:
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|
•
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our
Annual Report on Form 10-K for the year ended December 31, 2007
(SEC File
No. 000-51903);
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|
|
•
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our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2008 and
June 30, 2008 (SEC File No.
001-34022);
|
|
|
•
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our
Current Reports on Form 8-K filed with the SEC on January 11, 2008,
February 25, 2008, March 27, 2008, March 31, 2008, April 22, 2008,
May 14,
2008 and June 6, 2008 (SEC File Nos. 000-51903 and 001-34022);
and
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|
•
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the
description of our capital stock contained in our Registration
Statement
on Form 8-A filed with the SEC on April 14, 2008 (SEC File No.
001-34022.
|
We
incorporate by reference any additional documents that we may file with the
SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934
(other
than those “furnished” pursuant to Item 2.02 or Item 7.01 of Form 8-K or other
information “furnished” to the SEC)
from the date of the registration
statement of which this prospectus is part until the termination of the offering
of the securities. These documents may include annual, quarterly and current
reports, as well as proxy statements. Any material that we later file with
the
SEC will automatically update and replace the information previously filed
with
the SEC.
For
purposes of this registration statement, any statement contained in a document
incorporated or deemed to be incorporated herein by reference shall be deemed
to
be modified or superseded to the extent that a statement contained herein or
in
any other subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such statement in such
document.
NEW
GENERATION BIOFUELS HOLDINGS, INC.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
|
Registration
Fees
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$
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412
|
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Transfer
Agent Fees
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|
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500
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Legal
Fees and Expenses
|
|
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40,000
|
|
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Printing
and Engraving Expenses
|
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1,000
|
|
|
Accounting
Fees and Expenses
|
|
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20,000
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|
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Miscellaneous
|
|
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0
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Total
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$
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61,912
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|
Item
15. Indemnification of Directors and Officers.
Section
607.0850 of the Florida Business Corporation Act provides for the
indemnification of officers, directors, employees, and agents. A corporation
shall have power to indemnify any person who was or is a party to any proceeding
(other than an action by, or in the right of, the corporation), by reason of
the
fact that he or she is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint
venture, trust, or other enterprise against liability incurred in connection
with such proceeding, including any appeal thereof, if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed
to,
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any proceeding by judgment, order, settlement,
or
conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and
in a
manner which he or she reasonably believed to be in, or not opposed to, the
best
interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
We
have
agreed to indemnify each of our directors and certain officers against certain
liabilities, including liabilities under the Securities Act. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons pursuant to the
provisions described above, or otherwise, we have been advised that in the
opinion of the U.S. 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
our
payment of expenses incurred or paid by our director, officer or controlling
person 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, we will, unless in the opinion of our 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.
Item 16.
Exhibits.
The
Exhibit Table included elsewhere in this registration statement is incorporated
herein by reference.
Item 17.
Undertakings.
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 propectus required by section 10(a)(3) of the Securities Act
of
1933;
(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) (§230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than 20% change
in
the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table 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), (a)(1)(ii) and (a)(1)(iii) of this section do not
apply if
the registration statement is on Form S-3 (§239.13 of this chapter) or Form F-3
(§239.33 of this chapter) and 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 that are incorporated
by
reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) (§230.424(b) of this chapter) that is part of the
registration statement.
(2)
That,
for the purpose of determining any liability under the Securities Act of
1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, 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 under the Securities Act of 1933
to any
purchaser,
each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on
Rule 430B
or other than prospectuses filed in reliance on Rule 430A (§230.430A of this
chapter), shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness.
Provided,
however,
that
no
statement made in a registration statement or prospectus that is part of
the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part
of the
registration statement will, as to a purchaser with a time of contract
of sale
prior to such first use, supersede or modify any statement that was made
in the
registration statement or prospectus that was part of the registration
statement
or made in any such document immediately prior to such date of first
use.
(5) That
for the purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(6)
To
deliver or cause to be delivered with the prospectus, to each person to whom
the
prospectus is sent or given, the latest annual report to security holders that
is incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be
presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to
deliver, or cause to be delivered to each person to whom the prospectus is
sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(7)
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 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 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 Act and will be governed by the final adjudication
of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange 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-3 and has duly caused this Pre-Effective
Amendment No. 2 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Houston, State
of
Texas on August 20, 2008.
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NEW
GENERATION BIOFUELS HOLDINGS, INC.
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By:
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/s/
David A. Gillespie
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David
A. Gillespie
President and Chief Executive Officer
(principal
executive officer)
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|
Pursuant
to the requirements of the Securities Act of 1933, this Pre-Effective Amendment
No. 2 to the registration statement has been signed by the following
persons in the capacities and on the dates indicated.
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Name
|
|
Title
|
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Date
|
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/s/
David A. Gillespie
|
|
President,
Chief Executive Officer and Director (principal executive
officer)
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August 20,
2008
|
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David
A. Gillespie
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/s/
Cary J. Clairborne
|
|
Chief
Financial Officer (principal financial and accounting
officer)
|
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Cary
J. Claiborne
|
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/s/
Lee S. Rosen*
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Chairman
of the Board
|
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Lee
S. Rosen
|
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/s/
Phillip E. Pearce*
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Director
|
|
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|
Phillip
E. Pearce
|
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/s/
John E. Mack*
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Director
|
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John
E. Mack
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/s/
James Robert Sheppard, Jr.*
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Director
|
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James
Robert Sheppard, Jr.
|
|
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/s/
Steven F. Gilliland*
|
|
Director
|
|
|
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Steven
F. Gilliland
|
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*
By:
|
/s/ David
A. Gillespie
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David A. Gillespie
Attorney-in-Fact
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EXHIBIT
INDEX
|
Exhibit
No.
|
Exhibit
Description
|
|
4.1
|
Form
of $5.25 Warrant (incorporated by reference to Exhibit 4.3 to the
Annual
Report on Form 10-K filed March 31, 2008).
|
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5.1*
|
Opinion
of Hogan & Hartson LLP.
|
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23.1*
|
Consent
of Imowitz Koenig & Co., LLP.
|
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23.2*
|
Consent
of Hogan & Hartson LLP (included in Exhibit
5.1).
|
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24.1
|
Power
of Attorney (included on signature
page).
|
*
Filed
herewith.
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