UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
________________
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
|
XETHANOL
CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
(State
or Other Jurisdiction of
Incorporation
or Organization)
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84-1169517
(I.R.S.
Employer
Identification
No.)
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|
|
|
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3348
Peachtree Road NE
Suite
250 Tower Place 200
Atlanta,
Georgia 30326
(Address
of Principal Executive Offices)
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30326
(Zip
Code)
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|
|
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Xethanol
Corporation 2005 Incentive Compensation Plan
(Full
Title of the Plan)
|
|
|
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David
R. Ames
Chief
Executive Officer and President
Xethanol
Corporation
3348
Peachtree Road NE
Suite
250 Tower Place 200
Atlanta,
Georgia 30326
(Name
and Address of Agent For Service)
|
|
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(404)
814-2500
(Telephone
Number, Including Area Code of Agent For
Service)
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________________________________
Copies
Requested to:
Charles
D. Vaughn, Esq.
Nelson
Mullins Riley & Scarborough LLP
Atlantic
Station
201
17th
Street, N.W., Suite 1700
Atlanta,
Georgia 30363
Telephone:
(404) 322-6189
Fax:
(404) 322-6085
________________________________
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 12b-2 of the Exchange Act.
|
Large
accelerated filer
o
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Accelerated
filer
o
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Non-accelerated
filer
o
(Do
not check if a smaller reporting company)
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Smaller
reporting company
x
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CALCULATION
OF REGISTRATION FEE
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Title
Of Securities
To
Be Registered
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Amount
To Be
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
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6,500,000
(1)
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$0.265
(2)
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$1,722,500.00
(2)
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$67.69
(2)
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(1)
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Represents
shares of common stock issuable under Xethanol Corporation 2005 Incentive
Compensation Plan, as amended effective February 12, 2008.
Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this
registration statement shall also cover any additional shares of
common
stock which become issuable under the Plan by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in an
increase
in the number of our outstanding shares of common stock.
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(2)
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In
accordance with Rule 457(h), the aggregate offering price and the
amount
of the registration fee is based upon the average of the high and
low
prices of common stock reported on the American Stock Exchange on
October
1, 2008.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information*
Item
2. Registrant Information and Employee Plan Annual Information*
*We
will
send or give documents containing the information required by Part I of this
registration statement to participants in the
Xethanol
Corporation 2005 Incentive Compensation Plan, as amended effective February
12,
2008 (the “Plan”),
in
accordance with Rule 428(b)(1) of the General Rules and Regulations under the
Securities Act of 1933. In accordance with the Note to Part I of Form S-8,
those
documents are not filed with the SEC either as part of this registration
statement or as prospectuses or prospectus supplements.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3
.
Incorporation
of Documents by Reference
.
The
following documents we have filed with the SEC are incorporated by reference
into this registration statement, and all documents we subsequently filed with
the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 shall be incorporated by reference in this registration
statement and shall be a part of this registration statement from the date
of
filing of the documents:
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(a)
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our
Annual Report on Form 10-K for the year ended December 31, 2007;
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(b)
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our
Quarterly Reports on Form 10-Q for the three month periods ended
March 31,
2008 and June 30, 2008;
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(c)
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our
Current Reports on Form 8-K filed with the SEC on January 11, 2008,
January 22, 2008, January 23, 2008, January 25, 2008, March 25, 2008
and
July 23, 2008; and
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(d)
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the
description of our common stock included in the Registration Statement
on
Form 8-A filed with the SEC on June 19, 2006, which incorporated
by
reference the description of our common stock included in the Registration
Statement on Form SB-2 (Registration No. 333-135121) filed with the
SEC on
June 16, 2006, including any amendment
thereof.
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All
documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act on or after the date of this registration statement and prior
to
the filing of a post-effective amendment to this registration statement which
indicates that all securities offered pursuant to this registration statement
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 of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this registration statement shall be deemed to be modified or superseded
for
purposes of this registration statement to the extent that a statement contained
herein modifies or supersedes such statement. Any such statement so modified
or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item
4
.
Description
of Securities
.
Not
applicable.
Item
5
.
Interests
of Named Experts and Counsel
.
Not
applicable.
Item
6
.
Indemnification
of Directors and Officers
.
As
permitted by the General Corporation Law
of
the
State of Delaware (the “DGCL”), our certificate of incorporation eliminates,
subject to certain exceptions described in the following sentence, the personal
liability of a director to the company or our stockholders for monetary damage
for breach of fiduciary duties as a director. The certificate of incorporation
does not provide for the elimination of, or any limitation on, the personal
liability of a director for:
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(a)
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any
breach of the director’s duty of loyalty to the company or our
stockholders,
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(b)
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acts
or omissions not in good faith or which involve intentional misconduct
or
a knowing violation of law,
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(c)
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the
payment of a dividend or the approval of a stock repurchase which
is
deemed illegal under Section 174 of the DGCL,
or
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(d)
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any
transactions from which the director derived an improper personal
benefit.
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Our
certificate of incorporation further provides that if the DGCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the company shall
be
eliminated or limited to the fullest extent permitted by the DGCL, as
amended.
Section
145 of the DGCL provides that a corporation may indemnify directors and officers
as well as other employees and individuals under certain circumstances against
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed actions, suits or proceedings in which
such
person is made a party by reason of such person being or having been a director,
officer, employee or agent of the company. The DGCL further provides that
Section 145 is not exclusive of other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
Under
our
amended and restated bylaws, we are required to indemnify any individual made
a
party to a proceeding because he is or was a director or officer against
liability incurred in the proceeding, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to our best interests and, in
the
case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. In the event we determine that the director or officer
is
liable to the company or is found to be liable on the basis that personal
benefit was improperly received by him, the indemnification is limited to
reasonable expenses he actually incurred in connection with the proceeding
and
will not be made in respect of any proceeding in which he is found to be liable
for willful or intentional misconduct in the performance of his duty to the
company. We are required to pay for or reimburse the reasonable expenses
incurred by a director or officer who is a party to a proceeding in advance
of
final disposition of the proceeding if:
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(a)
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the
person furnishes us a written affirmation of his good faith belief
that he
has met the standard of conduct described above,
and
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(b)
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the
person furnishes us a written undertaking to repay any advances if
it is
ultimately determined that he is not entitled to
indemnification.
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The
written undertaking required by clause (b) above must be an unlimited general
obligation of the person and may be accepted without reference to financial
ability to make repayment. The DGCL does not permit a corporation to indemnify
a
director or officer in respect of any claim, issue or matter as to which the
director or officer was adjudged to be liable to the corporation unless and
only
to the extent that the Court of Chancery or the court in which such action
or
suit was brought determines upon application that, despite the adjudication
of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of
Chancery or such other court deems proper. Section 145 of the DGCL requires
that
a corporation
indemnify
a director who was successful on the merits or otherwise in the defense of
any
action, suit or proceeding, or in defense of any claim, issue or matter therein,
to which he or she was a party because he or she was
a
director or an officer of the corporation against expenses (including attorneys’
fees) actually and reasonably incurred by the director or officer.
The
rights to indemnification and the payment of expenses incurred in defending
a
proceeding in advance of its final disposition conferred in our bylaws are
not
exclusive of any other right which any person may have under any statute,
provision of the certificate of incorporation, provision of the bylaws,
agreement, vote of shareholders or disinterested directors, or otherwise. In
addition to our certificate of incorporation and amended and restated bylaws,
we
have entered into an identical form of indemnification agreement with each
of
our current directors and one former director. The indemnification
agreement
provides, among other things, that we will indemnify
the
indemnitee to the fullest extent now or thereafter permitted by applicable
law
(including, without limitation, the indemnification permitted by the DGCL)
in
the event he is made or is threatened to be made a party to a proceeding because
he is or was a director against liability incurred in the proceeding, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to our best interests and, in the case of any criminal proceeding,
he
had no reasonable cause to believe his conduct was unlawful.
The
indemnification agreement is intended to cover all actions, suits, proceedings
and appeals arising out of or connected with the indemnitee’s service as a
director which are currently pending or threatened or which arise in the future,
even if the indemnitee is no longer a director when such action, suit,
proceeding or appeal arises or is threatened. The agreement requires us to
pay
for or reimburse the reasonable expenses incurred by the indemnitee within
thirty days of receiving any invoice for such expenses accompanied or preceded
by an undertaking that the indemnitee will repay all such amounts if it is
ultimately determined that he is not entitled to indemnification. Subject to
various terms and conditions, the agreement also provides for contribution
in
circumstances in which we are held jointly liable with the indemnitee and
indemnification is unavailable under applicable law.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to our directors, officers, and controlling persons pursuant to
the
foregoing provisions, or otherwise, we have been advised that in the opinion
of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. If a claim for indemnification against such liabilities (other
than the payment of expenses incurred or paid by a director, officer or
controlling person in a 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 the court of
appropriate jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Securities Act and will be governed
by
the final adjudication of such issue.
Item
7
.
Exemption
from Registration Claimed
.
Not
applicable.
Item
8. Exhibits.
The
following exhibits are filed with this registration statement.
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Exhibit
No.
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Description
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4.1
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Xethanol
Corporation 2005 Incentive Compensation Plan, as amended effective
February 12, 2008. [Incorporated by reference to Exhibit 10.1 in
our
Quarterly Report on Form 10-Q for the quarter ended on March 31,
2008.]
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5.1
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Legal
Opinion of Nelson Mullins Riley & Scarborough LLP.
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23.1
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Consent
of Nelson Mullins Riley & Scarborough LLP (included in Exhibit
5.1).
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23.2
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Consent
of Independent Auditor - Imowitz Koenig & Co., LLP.
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24.1
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Power
of Attorney (contained on the signature pages of this registration
statement).
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Item
9. Undertakings.
1.
The
undersigned registrant hereby undertakes:
(a)
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;
(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 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 (1)(a)(i) and (1)(a)(ii) do not apply if the registration statement
is on Form S-8 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b)
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.
(c)
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.
2.
The
undersigned registrant hereby undertakes that, for 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 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.
3.
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 Act of 1933,
the
registrant certifies that it has reasonable grounds to believe that it meets
all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on
October
3, 2008
.
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XETHANOL
CORPORATION
By:
/s/
David R.
Ames
David
R. Ames
Chief
Executive Officer and President
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POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints jointly and severally, David R. Ames and Romilos
Papadopoulos, and each one of them, as such person’s true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for such person and in such person’s name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement on Form S-8 (including post-effective amendments), and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all
that
each of said attorneys-in-fact, or his substitute or substitutes, may 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:
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Signature
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Title
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Date
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/s/
David R. Ames
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Director, Chief
Executive Officer
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October
3, 2008
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David
R. Ames
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and
President
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/s/
Romilos Papadopoulos
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Chief
Financial Officer (principal
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October
3, 2008
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Romilos
Papadopoulos
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financial officer and principal
accounting officer), Chief
Operating Officer, Executive Vice
President and Secretary
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/s/
William P. Behrens
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Chairman
of the Board of
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October
1, 2008
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William
P. Behrens
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Directors
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/s/
Gil Boosidan
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Director
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October
2, 2008
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Gil
Boosidan
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/s/
Richard D. Ditoro
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Director
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October
1, 2008
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Richard
D. Ditoro
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/s/
Robert L. Franklin
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Director
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October
2, 2008
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Robert
L. Franklin
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/s/
Edwin L. Klett
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Director
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October
1, 2008
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Edwin
L. Klett
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Exhibit
Index
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Exhibit
No.
|
Description
|
|
|
|
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4.1
|
Xethanol
Corporation 2005 Incentive Compensation Plan, as amended effective
February 12, 2008. [Incorporated by reference to Exhibit 10.1 in
our
Quarterly Report on Form 10-Q for the quarter ended on March 31,
2008.]
|
|
|
|
|
5.1
|
Legal
Opinion of Nelson Mullins Riley & Scarborough LLP.
|
|
|
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23.1
|
Consent
of Nelson Mullins Riley & Scarborough LLP (included in Exhibit
5.1).
|
|
|
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23.2
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Consent
of Independent Auditor - Imowitz Koenig & Co., LLP.
|
|
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24.1
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Power
of Attorney (contained on the signature pages of this registration
statement).
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