AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 30,
2008
Registration
No. 333-___________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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)
Florida
|
|
26-0067474
|
(State
or other jurisdiction of incorporation or organization)
|
|
(I.R.S.
Employer Identification No.)
|
11111
Katy Freeway, Suite 910, Houston, Texas 77079
(713)
973-5720
(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.
11111
Katy Freeway, Suite 910
Houston,
Texas 77079
(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.
ý
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)
|
Large
accelerated filer
|
o
|
Accelerated
Filer
|
o
|
|
Non-accelerated
filer
(Do
not check if a smaller reporting company)
|
o
|
Smaller
reporting company
|
ý
|
CALCULATION
OF REGISTRATION FEE
Title
of each class of
securities
to be registered
|
|
Amount
being registered (1)
|
|
Proposed
maximum offering price per share
|
|
Proposed
maximum aggregate offering price
|
|
Amount
of registration
fee
|
|
Common
stock, par value $0.001 per share (2)
|
|
|
922,629
|
|
$
|
5.93(3
|
)
|
$
|
5,471,189.97
|
|
$
|
215.02
|
|
Common
stock, par value $0.001 per share (4)
|
|
|
950,357
|
|
$
|
5.25
(5
|
)
|
$
|
4,989,374.25
|
|
$
|
196.08
|
|
Total
Registration Fee
|
|
|
|
|
|
|
|
|
|
|
$
|
411.10
|
|
(1)
|
Pursuant
to Rule 416 under the Securities Act, this registration statement
shall
also cover any additional shares of common stock that shall become
issuable by reason of any stock dividend, stock split, recapitalization,
certain adjustments or other similar transaction effected without
the
receipt of consideration that results in an increase in the number
of the
outstanding shares of common stock.
|
(2)
|
Represents
presently outstanding shares of common stock held by the selling
stockholders.
|
(3)
|
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.
|
(4)
|
Represents
shares of common stock issuable upon the exercise of warrants at
a price
of $5.25.
|
(5)
|
Calculated
pursuant to Rule 457(g).
|
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 MAY 30, 2008
NEW
GENERATION BIOFUELS HOLDINGS, INC.
1,872,986
Shares
Common
Stock
This
prospectus relates to the sale of up to
1,872,986
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 include:
·
922,629
presently
outstanding shares of common stock held by non-affiliate selling stockholders;
and
·
950,357
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 May 27, 2008, there were 18,758,117 shares of our
common stock outstanding. On May 27, 2008, the closing price of our common
stock
on the American Stock Exchange was $5.90 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.
___________________________________
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. This
prospectus is not an offer to sell, or a solicitation of an offer to buy, shares
of common stock in any jurisdiction where offers and sales would be
unlawful. 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 May ___, 2008.
TABLE
OF CONTENTS
|
Page
|
|
|
ABOUT
THIS PROSPECTUS
|
2
|
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
2
|
SUMMARY
|
3
|
RISK
FACTORS
|
6
|
USE
OF PROCEEDS
|
7
|
DERTERMINATION
OF OFFERING PRICE
|
8
|
SELLING
STOCKHOLDERS
|
8
|
PLAN
OF DISTRIBUTION
|
9
|
LEGAL
MATTERS
|
12
|
EXPERTS
|
12
|
WHERE
YOU CAN FIND MORE INFORMATION
|
12
|
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
|
13
|
INDEMNIFICATION
|
13
|
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:
|
•
|
our
lack of operating history;
|
|
|
|
|
•
|
our
dependence on additional financing;
|
|
|
|
|
•
|
our
inability to generate revenues from sales of our biofuel and to establish
production facilities;
|
|
|
|
|
•
|
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;
|
|
|
|
|
•
|
our
inability to compete effectively in the renewable fuels
market;
|
|
|
|
|
•
|
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;
|
|
|
|
|
•
|
market
acceptance of our biofuel;
|
|
|
|
|
•
|
unexpected
costs and operating deficits;
|
|
|
|
|
•
|
adverse
results of any material legal proceedings; and
|
|
|
|
|
•
|
other
specific risks set forth or incorporated by reference under the heading
“Risk Factors” beginning on page 7 of this
report.
|
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. 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.
Our
near-term business strategy involves developing a revenue stream from direct
sales of our biofuel produced at manufacturing plants that we may purchase
or
build, either directly or through joint ventures. To execute this strategy,
we
are pursuing an active test burn program 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. As a result of
these successful tests, both parties have agreed to negotiate in good faith
toward a mutually agreeable purchase agreement for our biofuel.
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.
The
operation and development of our business will require substantial additional
capital during 2008 to fund, among other things, our operations, payments due
under our exclusive license, the acquisition or development of manufacturing
plants, research and development and the financing of future acquisitions and
investments.
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 1,872,986 shares of our common
stock
by the non-affiliate selling stockholders listed in this prospectus,
representing, as of May 27, 2008, approximately 9.98% 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
include:
·
922,629
presently outstanding shares of common stock held by non-affiliate selling
stockholders, including 35,486 shares issued as penalty shares in connection
with registration rights agreements between the company and the investors;
and
·
950,357
shares of common stock issuable upon exercise of warrants to purchase common
stock.
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.
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 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 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, not to exceed an aggregate of
6%.
Because
we did not file the registration statement before this deadline, we incurred
penalties and issued 35,486 additional shares of common stock to
investors in the private placement, amounting to 4% 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. 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, 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.
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 $4,989,374 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 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.
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.
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 furnished to us by the
selling stockholders as of May 27, 2008. 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.
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 May 27, 2008;
|
|
·
|
the
maximum number of shares of our common stock that may be offered
for the
account of the selling stockholders under this prospectus;
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 18,758,167 shares of our common stock outstanding as
of May
27, 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 May 27, 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
|
Shares
Offered Hereby
|
Shares
Owned After the Offering (16)
|
Percentage
of Outstanding Shares Owned After the Offering
|
Empire
Financial Holding Company (1)
|
144,548
|
15,171
|
90,057
|
*
|
Michael
R. Jacks (2)
|
232,777
|
17,700
|
87,537
|
*
|
William
Corbett (3)
|
232,777
|
17,700
|
87,537
|
*
|
Robbins
Capital Partners L.P. (4)
|
1,186,737
|
469,200
|
192,537
|
**
|
Theodore
Seelye (5)
|
186,581
|
122,400
|
64,181
|
*
|
Dr.
John Tafel (6)
|
345,250
|
204,000
|
0
|
-
|
CGMA
Special Accounts, LLC (7)
|
274,001
|
264,637
|
0
|
-
|
Capra
Global Managed Assets, Ltd. (8)
|
21,399
|
20,963
|
0
|
-
|
Cranshire
Capital, LP (9)
|
337,873
|
153,000
|
184,873
|
**
|
Harry
Mittelman Revocable Trust (10)
|
61,200
|
61,200
|
0
|
-
|
Iroquois
Master Fund Ltd. (11)
|
61,200
|
61,200
|
0
|
-
|
Gimmel
Partners (12)
|
1,634,378
|
306,000
|
363,878
|
*
|
Rockmore
Investment Master Fund Ltd. (13)
|
235,333
|
116,572
|
113,563
|
*
|
Susan
Sandberg (14)
|
30,600
|
30,600
|
0
|
-
|
Cliff
Henry (15)
|
12,643
|
12,643
|
0
|
-
|
TOTAL
|
4,997,297
|
1,872,986
|
|
|
*
Less
than 1%
**Less
than 5%
(1)
Includes 27,742 shares of common stock issuable upon initial conversion
of the
Series B Preferred Stock, 7,365 shares issuable as dividends on our Series
B
preferred stock and 109,441 shares of common stock underlying warrants
exercisable within 60 days of May 27, 2008. The address for Empire Financial
Group, Inc. is 2170 West St. Road 434, Suite 100, Longwood, FL 32779. The
person
with the power to vote and dispose of the securities held by Empire Financial
Group, Inc. 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.
(2)
Includes 20,800 shares of common stock issuable upon initial conversion
of the
Series B Preferred Stock, 5,521 shares of common stock issuable as dividend
on
our Series B preferred stock and 206,456 shares of common stock underlying
warrants exercisable within 60 days of May 27, 2008. 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.
(3)
Includes 20,800 shares of common stock issuable upon initial conversion
of our
Series B preferred stock, 5,521 shares of common stock issuable as dividends
on
our Series B preferred stock and 206,456 shares of common stock underlying
warrants exercisable within 60 days of May 27, 2008. 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.
(4)
Includes 464,200 shares of common stock currently outstanding, 200,000
shares of
common stock issuable upon initial conversion of our Series A preferred
stock,
127,059 shares of common stock issuable upon initial conversion of our
Series B
preferred stock, 33,714 shares of common stock issuable as dividends on
our
Series B preferred stock and 361,764 shares of common stock underlying
warrants
exercisable within 60 days of May 27, 2008. The address for Robbins Capital
Partners L.P. is 100 First Stamford Place, 6th Floor East Stamford, CT
06902. T.
Robbins Capital Management is the registered Investment Advisor and is
the
managing partner of Robbins Capital Partners, L.P. Thayer B. Robbins has
sole
power to vote and dispose of the securities held by Robbins Capital Partners
L.P. 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.
(5)
Includes
62,400 shares of common stock currently outstanding, 42,353 shares of common
stock issuable upon initial conversion of the Series B preferred stock,
11,240
shares of common stock issuable as dividends on our Series B preferred
stock and
70,588 shares of common stock underlying warrants exercisable within 60
days of
May 27, 2008. 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.
(6)
Includes 114,000 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 exercisable within 60
days of
May 27, 2008. 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.
(7)
Includes 144,277 shares of common stock currently outstanding and 129,724
shares
of common stock underlying warrants exercisable within 60 days of May 27,
2008.
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.
(8)
Includes 11,123 shares of common stock currently outstanding and 10,276 shares
of common stock underlying warrants exercisable within 60 days of May 27,
2008.
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.
(9)
Includes 78,000 shares of common stock currently outstanding, 122,000 shares
of
common stock issuable upon initial conversion of the Series B Preferred
Stock,
32,373 shares of common stock issuable as dividends on our Series B preferred
stock and 105,500 shares of common stock underlying warrants exercisable
within
60 days of May 27, 2008. 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.
(10)
Includes 31,200 shares of common stock currently outstanding and 30,000 shares
of common stock underlying warrants exercisable within 60 days of May 27,
2008.
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.
(11)
Includes 31,200 shares of common stock currently outstanding and 30,000 shares
of common stock underlying warrants exercisable within 60 days of May 27,
2008.
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.
(12)
Includes
833,200 shares of common stock currently outstanding, 125,000 shares of
common
stock issuable upon initial conversion of our Series A preferred stock,
240,000
shares of common stock issuable upon initial conversion of our Series B
preferred stock, 63,678 shares of common stock issuable as dividends on
our
Series B preferred stock and 372,500 shares of common stock underlying
warrants
exercisable within 60 days of May 27, 2008. 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.
(13)
Includes
64,627 shares of common stock currently outstanding, 74,942 shares of common
stock issuable upon initial conversion of the Series B preferred stock,
19,886
shares of common stock issuable as dividends on our Series B preferred
stock and
75,878 shares of common stock underlying warrants exercisable within 60
days of
May 27, 2008. 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.
(14)
Includes 15,600 shares of common stock currently outstanding and 15,000 shares
of common stock underlying warrants exercisable within 60 days of May 27,
2008.
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 12,643 shares of common stock underlying warrants exercisable within
60
days of May 27, 2008. 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)
Assumes all shares held by the selling
stockholders that have been registered on any Company registration statement
have been sold. Any shares shown are unregistered shares.
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.
(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 will pass upon the validity of the shares of common stock
offered in this prospectus.
EXPERTS
The
consolidated financial statements 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 and for the period from February
28,
2006 (inception) to December 31, 2006 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:
|
|
|
What
is Available
|
|
Where
to Get it
|
Paper
copies of information
|
|
SEC’s
Public Reference Room
|
|
|
100
F Street, N.E.
|
|
|
Washington, D.C.
20549
|
On-line
information, free of charge
|
|
SEC’s
Internet website at
|
|
|
www.sec.gov
|
Information
about the SEC’s Public Reference Room
|
|
Call
the SEC at 1-800-SEC-0330
|
We
have
filed with the SEC a registration statement under the Securities Act, as
amended, 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
11111
Katy Freeway, Suite 910
Houston,
TX 77079
(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.
|
•
|
our
Annual Report on Form 10-K for the year ended December 31,
2007;
|
|
|
|
|
•
|
our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2008;
|
|
|
|
|
•
|
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
and May
14, 2008; and
|
|
|
|
|
•
|
the
description of our capital stock contained in our Registration Statement
on Form 8-A filed with the SEC on April 14,
2008.
|
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 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.
INDEMNIFICATION
Our
directors and executive officers are entitled to indemnification as expressly
permitted by the provisions of the Florida Business Corporation Act and our
Amended and Restated Bylaws.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers, or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed 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.
NEW
GENERATION BIOFUELS HOLDINGS, INC.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
Registration
Fees
|
|
$
|
412
|
|
Transfer
Agent Fees
|
|
|
500
|
|
Legal
Fees and Expenses
|
|
|
20,000
|
|
Printing
and Engraving Expenses
|
|
|
1,000
|
|
Accounting
Fees and Expenses
|
|
|
6,000
|
|
Miscellaneous
|
|
|
0
|
|
Total
|
|
$
|
27,912
|
|
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.
(a) The
undersigned registrant hereby undertakes:
|
(1)
|
|
To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration
statement:
|
|
(i)
|
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
|
|
|
|
|
|
(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% 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) above do not apply if the
registration statement is on Form S-3 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, or is contained in
a
form of prospectus filed pursuant to Rule 424(b) 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.
|
(b) The
undersigned registrant hereby undertakes 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.
(c)
The
undersigned registrant hereby undertakes 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.
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas on May 30,
2008.
|
|
|
|
NEW
GENERATION BIOFUELS HOLDINGS, INC.
|
|
|
|
|
By:
|
/s/
David A. Gillespie
|
|
David
A. Gillespie
President and Chief Executive Officer
(principal
executive officer)
|
We,
the
undersigned directors and officers of New Generation Biofuels Holdings, Inc.,
do
hereby constitute and appoint David A. Gillespie and Cary J. Claiborne, our
true
and lawful attorneys-in-fact and agents, to do any and all acts and things
in
our names and our behalf in our capacities as directors and officers and to
execute any and all instruments for us and in our name in the capacities
indicated below, which said attorneys and agents may deem necessary or advisable
to enable said Corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this registration statement, or any registration statement
for this offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, including specifically, but
without limitation, any and all amendments (including post-effective amendments)
hereto; and we hereby ratify and confirm all that said attorneys and agents,
or
any of them, shall do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
David A. Gillespie
|
|
President,
Chief Executive Officer and Director (principal executive
officer)
|
|
May
30, 2008
|
David
A. Gillespie
|
|
|
|
|
|
|
|
|
|
/s/
Cary J. Clairborne
|
|
Chief
Financial Officer (principal financial and accounting
officer)
|
|
|
Cary
J. Claiborne
|
|
|
|
|
|
|
|
|
|
/s/
Lee S. Rosen
|
|
Chairman
of the Board
|
|
|
Lee
S. Rosen
|
|
|
|
|
|
|
|
|
|
/s/
Phillip E. Pearce
|
|
Director
|
|
|
Phillip
E. Pearce
|
|
|
|
|
|
|
|
|
|
/s/
John E. Mack
|
|
Director
|
|
|
John
E. Mack
|
|
|
|
|
|
|
|
|
|
/s/
James Robert Sheppard, Jr.
|
|
Director
|
|
|
James
Robert Sheppard, Jr.
|
|
|
|
|
|
|
|
|
|
/s/
Steven F. Gilliland
|
|
Director
|
|
|
Steven
F. Gilliland
|
|
|
|
|
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).
|
5.1*
|
Opinion
of Hogan & Hartson LLP.
|
23.1*
|
Consent
of Imowitz Koenig & Co., LLP.
|
23.2*
|
Consent
of Hogan & Hartson LLP (included in Exhibit
5.1).
|
24.1
|
Power
of Attorney (included on signature
page).
|
*
Filed
herewith.
New Gen Biofuels (AMEX:GNB)
Historical Stock Chart
From Aug 2024 to Sep 2024
New Gen Biofuels (AMEX:GNB)
Historical Stock Chart
From Sep 2023 to Sep 2024