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Prospectus
Supplement
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Filed
Pursuant to Rule 424(b)(5)
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(to Prospectus dated January
27, 2009)
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Registration
No. 333-156449
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1,111,112
Shares of Common Stock
Warrants
to Purchase 555,556 Shares of Common Stock
We are
offering 1,111,112 shares of our common stock, $0.001 par value per share, and
warrants to purchase 555,556 shares of our common stock (and the underlying
shares of common stock issuable from time to time upon exercise of the
warrants). The common stock and warrants will be sold such that for each share
of our common stock purchased, an investor will receive a warrant to purchase
0.50 shares of our common stock at an exercise price of $0.60 per share. The
warrants are exercisable at any time after the six-month anniversary of their
date of issuance and will expire on the fifth anniversary of their date of
issuance. Each share will be sold at a price of $0.45. The shares of common
stock and warrants are immediately separable and will be issued
separately.
Our
common stock is listed on The NASDAQ Capital Market under the symbol “NGBF”. The
last reported sale price of our common stock on The NASDAQ Capital Market on
June 10, 2010 was $0.60 per share. We do not intend that the warrants will trade
on any exchange or be listed for quotation on any market.
Investing
in our securities involves risks. See the “Risk Factors” beginning on
page S-5 of this prospectus supplement and incorporated by reference from our
Annual Report on Form 10-K for the year ended December 31, 2009, and in
subsequent filings with the Securities and Exchange Commission, or
SEC.
As of
June 1, 2010, the aggregate market value of our outstanding common stock held by
non-affiliates was approximately $22,037,279, based on 36,471,249 shares of
outstanding common stock, of which 8,924,650 shares are held by affiliates, and
a price of $0.80 per share, which was the last reported sale price of our common
stock as quoted on The NASDAQ Capital Market on April 12, 2010. As of the date
hereof, including the securities being offered hereunder, we have offered
securities with an aggregate market value of approximately $6,520,335,
consisting of the 6,081,743 shares of our common stock and warrants to purchase
1,742,307 shares of our common stock issued in July and December 2009, pursuant
to General Instruction I.B.6. of Form S-3 during the prior 12 calendar month
period that ends on, and includes, the date of this prospectus
supplement.
Rodman
& Renshaw, LLC is acting as our placement agent in connection with this
offering. The placement agent is not purchasing or selling any of these
securities nor is it required to sell any minimum specific number or dollar
amount of securities but has agreed to use its best efforts to sell the
securities offered by this prospectus supplement. In consideration for its
services, we have agreed to pay the placement agent the aggregate fees set forth
in the table below and to issue warrants to purchase up to an aggregate 55,556
shares of our common stock at an exercise price of $0.75 per share. The
placement agent warrants are not covered by this prospectus
supplement.
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Per
Share
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Maximum
Offering
Amount
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Public
offering price of shares
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$
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0.45
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$
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500,000
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Placement agent
fees
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$
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0.03
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$
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35,000
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Proceeds, before expenses, to
New Generation Biofuels Holdings, Inc.
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$
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0.42
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$
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465,000
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We expect
that delivery of the shares being offered pursuant to this prospectus supplement
will be made to purchasers on or about June 14, 2010.
Neither the SEC nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus supplement or the accompanying prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
Rodman
& Renshaw, LLC
Placement
Agent
The date of this prospectus
supplement is June 10, 2010
TABLE OF CONTENTS
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Page
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Prospectus
Supplement
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About
this Prospectus Supplement
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S-i
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Summary
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S-1
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Risk
Factors
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S-6
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Special
Note Regarding Forward-Looking Statements
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S-8
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Use
of Proceeds
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S-9
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Dilution
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S-9
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Description
of Securities
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S-11
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Plan
of Distribution
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S-13
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Legal
Matters
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S-14
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Experts
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S-14
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Incorporation
of Certain Information by Reference
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S-15
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Where
You Can Find More Information
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S-16
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Accompanying
Prospectus
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About
this Prospectus
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1
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Our
Company
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1
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Cautionary
Note Regarding Forward-Looking Statements
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2
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Risk
Factors
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2
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Use
of Proceeds
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3
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Description
of Securities
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4
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Plan
of Distribution
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7
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Legal
Matters
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9
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Experts
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9
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Where
You Can Find More Information
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10
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Incorporation
of Certain Information by Reference
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10
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ABOUT THIS PROSPECTUS
SUPPLEMENT
This prospectus supplement and the
accompanying prospectus are part of a “shelf” registration statement on
Form S-3 (No. 333-156449) that we filed with the SEC. This prospectus
supplement describes the specific terms of this offering. The accompanying
prospectus, including the documents incorporated by reference, provides general
information about us, some of which, such as the section therein entitled “Plan
of Distribution,” may not apply to this offering. Generally, when we refer to
this prospectus, we are referring to both parts of this document, this
prospectus supplement and the accompanying prospectus, combined.
We urge you to carefully read this
prospectus supplement, the accompanying prospectus and the documents
incorporated herein and therein, before buying any of the securities being
offered under this prospectus supplement. These documents contain information
you should consider when making your investment decision.
You should rely only on the information
contained or incorporated by reference in this prospectus supplement and the
accompanying prospectus. We have not, and the placement agent has not,
authorized anyone to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on it. This
prospectus supplement may add, update or change information contained in the
accompanying prospectus. To the extent any information in this prospectus
supplement is inconsistent with the accompanying prospectus, you should rely on
the information in this prospectus supplement. The information in this
prospectus supplement will be deemed to modify or supersede those made in the
accompanying prospectus and the documents incorporated by reference therein,
except for those documents incorporated by reference therein which we file with
the SEC after the date hereof.
You should not assume that the
information contained or incorporated by reference in this prospectus supplement
and the accompanying prospectus is accurate on any date subsequent to the date
set forth on the front cover of this prospectus supplement and the accompanying
prospectus or on any date subsequent to the date of the document incorporated by
reference, as applicable. Our business, financial condition, results of
operations and prospects may have changed since those dates.
We are offering to sell, and seeking
offers to buy, the securities described in this prospectus supplement only in
jurisdictions where offers and sales are permitted. The distribution of this
prospectus supplement and the offering of the securities in certain
jurisdictions may be restricted by law. Persons outside the United States who
come into possession of this prospectus supplement must inform themselves
about, and observe any restrictions relating to, the offering of the
securities and the distribution of this prospectus supplement outside the United
States. This prospectus supplement does not constitute, and may not be used in
connection with, an offer to sell, or a solicitation of an offer to buy, any
securities offered by this prospectus supplement by any person in any
jurisdiction in which it is unlawful for such person to make such an offer or
solicitation.
We are not making any representation to
you regarding the legality of an investment in the common stock, warrants and
underlying common stock by you under applicable law. You should consult with
your own legal advisors as to the legal, tax, business, financial and related
aspects of a purchase of these securities.
SUMMARY
This summary is not complete and
does not contain all of the information that you should consider before
investing in the securities offered by this prospectus. You should read this
summary together with the entire prospectus supplement and accompanying
prospectus, including our financial statements, notes to those financial
statements and the other documents that are incorporated by reference in this
prospectus supplement, before making an investment decision. See the “Risk
Factors” section of this prospectus supplement on page S-5 and those in our
Annual Report on Form 10-K for the year ended December 31, 2009, and in
subsequent filings with the SEC, which are incorporated by reference herein for
a discussion of the risks involved in investing in our
securities.
New Generation Biofuels Holdings,
Inc.
We are a
renewable biofuels provider that is marketing a new class of “second generation”
biofuels for use in diesel fuel applications, including power generation,
commercial and industrial heating and marine transportation, that began
generating revenues in 2008.
We
produce our biofuels using a proprietary blending technology that we believe is
simpler, cleaner, less expensive, and less energy intensive than the complex
chemical reaction process used to produce traditional biodiesel. We believe that
this technology gives us a competitive advantage by enabling us to produce
biofuels that are cleaner and less expensive than our competitors. Our
technology also gives us the flexibility to produce our biofuel from multiple
feedstocks, which allows us to use non-edible raw materials in our production
process, when desirable. We believe that these fuel characteristics will enable
us to customize our product to specific customer requirements and react more
quickly to trends in the biofuels market.
During
the year ended December 31, 2009, we commenced our principal business operations
and
have exited the development stage. Prior to that, from our
inception, we were a development stage entity in accordance with the Financial
Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”)
Topic 915,
“Development Stage
Entities.”
We have
incurred annual operating losses since inception and expect to incur substantial
operating losses in the future in connection with the development of our core
products. As of March 31, 2010, we had an accumulated deficit of $53.5
million. The operation and development of our business will require
substantial additional capital to fund our operations, payments due under
our exclusive license, the acquisition or development of manufacturing plants,
research and development and working capital and general corporate
purposes.
Our
near-term business strategy involves the following:
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Direct
Sales.
We are seeking to develop a revenue stream from
direct sales of our biofuel produced at our Baltimore production facility.
Based on existing contracts with our customers, we are seeking to expand
our facility over the next several months, if sufficient resources are
available. Our longer term strategy would include construction
of additional plants.
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Technology
Licensing
. 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 facilities. We are in the process of exploring various technology
licensing relationships.
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Government Tax
Credits
. We are also pursuing our eligibility and
qualification for tax credits and other government incentives to
strengthen the competitive position of our biofuel and to otherwise
attempt to take advantage of the U.S. government’s encouragement of
“green” technologies.
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Strategic
Partners
. We are seeking arrangements with strategic
partners who would both provide funding and support our efforts to develop
our production capacity and attract
customers.
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Research and
Development
. To the extent permitted by our limited
resources, we are continuing to develop our technology and extend it to
fuels with additional applications.
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Our principal executive office is
located at 5850 Waterloo Road, Suite 140, Columbia, Maryland 21045. Our
telephone number is (410) 480-8084. Our website is
www.newgenerationbiofuels.com
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The information on our website or any other website is not incorporated by
reference into this prospectus supplement or any accompanying
prospectus.
Recent
Developments
Significant recent developments
regarding our company include the following:
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On
June 4, 2010, we amended our non-binding Memorandum of Understanding, or
MOU, dated March 12, 2010, with Regent Trend Investment Ltd (soon to be
re-named Milestone Biofuels Limited, or Milestone), a potential strategic
partner from China, to extend the due diligence period an additional 90
days to more fully explore the opportunities available for both parties.
Under the MOU, Milestone would invest $20 million in our equity
securities, and we would collaborate with Milestone to form a joint
venture to develop and operate biofuel production plants in the
continental United States with a total aggregate plant capacity of 250
million gallons per year. Milestone would fund all of the capital
requirements for the joint venture, and we would provide the technology
and operate the plants. We would earn a minimum royalty on all sales from
the joint venture and would share in a percentage of profits above the
minimum royalty. The MOU remains subject to due diligence and negotiation,
execution and delivery of definitive agreements acceptable to both parties
and approved by their respective boards of directors. The investment also
may be subject to shareholder approval under the NASDAQ listing rules.
There can be no assurance that the transaction will be completed, either
on the proposed terms and within the timeframe currently anticipated, or
at all.
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On
May 12, 2010, we issued a termination notice to Fenix Energy to terminate
our biofuel contract with them as a result of Fenix’s failure to post the
mandatory letter of credit equal to one month’s projected sales that we
requested in March 2010. The termination is effective immediately,
although Fenix has a 30 day cure period. This contract was our largest
single biofuel sales contract, under which Fenix Energy had agreed to
purchase a minimum of 750,000 gallons of our biofuel per month for 12
months. At this point, we have no reason to believe that Fenix will meet
the requirement for the letter of credit or purchase any of our biofuel
and have removed the contract from our production plans. We are continuing
to work to advance several potential customers in our pipeline from
negotiation to executed contracts. We believe that we will be able to
offset the volume lost from the Fenix termination with some delay relative
to when product might have been shipped under the Fenix contract, although
there can be no assurance that we will be able to do
so.
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On
May 7, 2010, the Company’s board of directors completed several management
and organizational changes, including appointing John E. Mack, our current
audit committee chairman, as non-executive Chairman of the Board and David
H. Goebel, our Chief Operating Officer, as a director, and accepting the
resignation of Lee S. Rosen as Chairman and as director and approving a
separation agreement with Mr.
Rosen.
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On
April 30, 2010, the Company completed a private placement of 90-day
secured convertible notes and warrants, raising $700,000 in gross proceeds
and $630,000 in net proceeds, after deducting finders’
fees.
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The
Offering
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Common
stock offered by us:
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1,111,112
shares.
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Common
stock to be outstanding after this offering:
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37,582,361
shares of common stock, or 38,137,917 shares of common stock if the
warrants offered hereby are exercised in full.
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Warrants
offered by us:
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Warrants
to purchase up to 555,556 shares of common stock. The warrants have an
exercise price of $0.60 per share, and will be exercisable at any time
after the six-month anniversary of their date of issuance and will expire
on the fifth anniversary of their date of issuance. This prospectus
supplement also relates to the offering of the shares of common stock
issuable upon exercise of the warrants.
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Use
of proceeds:
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We
intend to use the net proceeds received from the sale of the securities to
fund operations and for working capital and general corporate purposes. We
may also repay a portion of our secured convertible notes due in July
2010. See “Use of Proceeds” on page S-9.
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NASDAQ
Capital Market Symbol:
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NGBF
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Risk
Factors:
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See
“Risk Factors” beginning on page S-5 for a discussion of factors that you
should read and consider carefully before investing in our
securities.
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The fully diluted number of shares of
our common stock outstanding after this offering is based on
36,471,249 shares outstanding as of June 1, 2010, which
excludes:
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10,381,059
shares subject to outstanding options as of June 1, 2010, having a
weighted average exercise price of $2.81 per
share;
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12,841,141 shares of our common stock issuable
upon exercise of outstanding warrants as of
June
1, 2010, having an weighted average exercise price of $1.74 per
share;
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372,610
shares of common stock available for future issuance under our Omnibus
Incentive Plan;
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1,802,531
shares of common stock issuable upon the conversion of outstanding Series
B convertible preferred stock, at a conversion price of $3.00 per share
(which convert automatically in March
2011);
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555,556
shares issuable upon the exercise of warrants to be issued in this
offering, at an exercise price of $0.60 per share;
and
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55,556
shares issuable upon the exercise of warrants, at an exercise price of
$0.75 per share, to be issued to the placement agent in consideration for
their services in this
Offering.
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The
number of shares of our common stock outstanding after this offering on a fully
diluted basis (giving effect to the conversion of outstanding preferred stock
and exercise of vested options and warrants which are in the money) as of June
1, 2010 equaled 39,384,892.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. Before making an
investment decision, you should carefully consider the risks described below and
those in our Annual Report on Form 10-K for the year ended December 31, 2009,
and in our subsequent filings with the SEC, which are incorporated by reference
herein, and the other information set forth or incorporated by reference in this
prospectus supplement and the accompanying prospectus. You also should refer to
our financial statements and the notes to those statements, which are
incorporated by reference in this prospectus supplement. See also the
information contained under the heading “Special Note Regarding Forward-Looking
Statements” immediately below.
Assuming
receipt of $500,000 in gross proceeds, this offering will only provide financing
through July 2010, and we will need to raise additional capital to meet our
accrued liability and debt obligations and to continue our business, which may
not be available on acceptable terms or at all.
Based on our current estimates, we
anticipate that our existing financial resources, including the expected net
proceeds to us from this offering, will be adequate to permit us to continue to
conduct our business through at least through July 2010, although we will
require additional capital to meet our accrued liability and debt obligations.
As of May 31, 2010, we had approximately $0.14 million of available cash and
approximately $3.3 million of short-term debt, accounts payable and accrued
expenses. On July 29, 2010, we must repay $700,000 pursuant to our 90-day
secured convertible notes issued in April 2010. We also may owe certain lease
payments under our site lease and terminaling services agreement for our
Baltimore production facility and are negotiating to settle various issues by
reducing rent payments and modifying certain terms of the agreements in return
for making certain payments. In addition, under the license agreement with the
inventor of our proprietary technology, we are required to pay $1.0 million per
year over the next four years, with the next $1.0 million due in March 2011. If
we are unable to raise additional capital, we will not be able to continue our
business. We cannot ensure that additional funding will be available or, if
available, that it can be obtained on terms and conditions we will deem
acceptable. Additional funding derived from the sale of equity securities is
likely to result in dilution to our existing shareholders, including investors
in this offering.
If
we do not meet Nasdaq requirements for continued listing, our common stock may
be delisted which could negatively impact our stock’s liquidity.
Under Nasdaq listing rules, our common
stock could be delisted from Nasdaq if we do not meet certain standards
regarding our financial condition and operating results (including, among other
factors, maintaining adequate shareholders’ equity, minimum $1.00 bid price and
market capitalization), the distribution of our publicly held securities and
compliance with Nasdaq listing agreements and SEC rules and regulations. For
example, Nasdaq requires a minimum shareholders’ equity of $2.5 million or,
alternatively, a market value of listed securities of at least $35 million. On
March 26, 2010, we filed our Annual Report on Form 10-K for the year ended
December 31, 2009, in which we reported shareholders’ equity of $1,002,204. In
early April 2010, we received notice from Nasdaq that our shareholders’ equity
did not meet the minimum continued listing requirement of $2.5 million, based on
our balance sheet as of December 31, 2009. As of March 31, 2010, we also did not
meet the alternative listing requirements of at least $35 million in market
value of listed securities or at least $500,000 in net income from continuing
operations. In our Quarterly Report on Form 10-Q for the quarter ended March 31,
2010, we reported shareholders’ equity again below the $2.5 million minimum. On
May 17, 2010, we submitted a plan to Nasdaq to regain and sustain compliance,
but there can be no assurance that we will be able to do so.
Further, listed companies whose
securities fall below the minimum $1.00 bid requirement for continued listing
for 30 consecutive business days can be subject to delisting. In December 2009,
we received a notice from Nasdaq that we were not in compliance with the minimum
bid requirement for 30 consecutive business days and have until June 21, 2010 to
regain compliance. Our common stock has not traded above $1.00 on the Nasdaq
Capital Market since December 2009.
We may not be able to meet the listing
maintenance requirements of the Nasdaq Capital Market and Nasdaq listing
requirements. If we are unable to satisfy the Nasdaq criteria for maintaining
listing, our common stock may be subject to delisting. Trading, if any, of our
securities would thereafter be conducted in the over-the-counter market, in the
so-called “pink sheets” or on the OTC Bulletin Board. As a consequence of any
such delisting, our shareholders would likely find it more difficult to dispose
of, or to obtain accurate quotations as to the prices of, our common
stock.
We
may not close the proposed strategic transaction and investment with Milestone
Biofuels as contemplated by our MOU, on acceptable terms or at all.
Although
the non-binding MOU with
Milestone Biofuels was amended to extend the due diligence period an additional
90 days, the MOU remains subject to due diligence and negotiation, execution and
delivery of definitive agreements acceptable to both parties and approval by
their respective boards of directors. The investment also may be subject to
shareholder approval under the NASDAQ listing rules. There can be no assurance
that the transaction will be completed, either on the proposed terms and within
the timeframe currently anticipated, or at all.
If
we are unable to replace our largest single biofuel sales contract that we
recently terminated for failure to perform, revenue growth and our results of
operations may be negatively impacted.
In May 2010, we terminated our largest
single biofuel sales contract, under which Fenix Energy had agreed to purchase a
minimum of 750,000 gallons of our biofuel per month for 12 months, for certain
failures to perform. It may take us a significant period of time to replace the
sales volume represented by that one contract, and we cannot assure you whether
or when we will be able to do so.
There is no
public market for the warrants to purchase common stock in this
offering.
There is
no established public trading market for the warrants being sold in this
offering, and we do not expect a market to develop. In addition, we do not
intend to apply to list the warrants on any securities exchange. Without an
active market, the liquidity of the warrants will be limited.
The warrants
being issued as part of this offering are not immediately
exercisable.
The
warrants being sold in this offering will not be exercisable until after six
months from the date of issuance and will expire five years from date of
issuance. In the event our common stock price does not exceed the per share
exercise price of the warrants during the period when the warrants are
exercisable, the warrants will not have any value.
As a new
investor, you will incur substantial dilution as a result of this offering and
future equity issuances, and as a result, our stock price could
decline.
The
offering price is substantially higher than the net tangible book value per
share of our outstanding common stock. As a result, based on our capitalization
as of June 10, 2010, investors purchasing common stock in this offering will
incur immediate dilution of $0.58 per share of common stock purchased, based on
the offering price of $0.45 per share, without giving effect to the potential
exercise of the warrants offered by this prospectus supplement. In addition to
this offering, subject to market conditions and other factors, it is likely that
we will pursue additional financings in the future, as we continue to build our
business. In future years, we will likely need to raise significant additional
capital to finance our operations and the development, manufacture and marketing
of other products under development and new product opportunities. Accordingly,
we may conduct substantial future offerings of equity or debt securities. The
exercise of outstanding options and warrants and future equity issuances,
including future public offerings or future private placements of equity
securities and any additional shares issued in connection with acquisitions,
will result in dilution to investors. In addition, the market price of our
common stock could fall as a result of resales of any of these shares of common
stock due to an increased number of shares available for sale in the
market.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Any
statements in this prospectus supplement, the accompanying prospectus and the
information incorporated herein and therein by reference relating to future
financial or business performance, conditions or strategies and other financial
and business matters, including expectations regarding future revenues and
operating expenses, are forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. These forward-looking
statements can generally be identified as such because the context of the
statement will include words such as “anticipates,” “believes,” “continues,”
“estimates,” “expects,” “intends,” “may,” “opportunity,” “plans,” “potential,”
“predicts,” “projects” or “will,” the negative of these words or words of
similar import. Similarly, statements that describe our future plans,
strategies, intentions, expectations, objectives, goals or prospects are also
forward-looking statements. We caution that these forward-looking statements are
subject to numerous assumptions, risks and uncertainties, that can change over
time. Factors that may cause actual results to differ materially from the
results discussed in the forward-looking statements include:
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our
lack of operating history;
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our
dependence on additional financing to continue as a going
concern;
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our
inability to generate revenues or profits from sales of our biofuel and to
establish commercial scale production
facilities;
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our
inability to close a strategic transaction and investment with Milestone
Biofuels as contemplated by our MOU, on acceptable terms or at
all;
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the
disproportionally higher cost of production relative to units
sold;
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our
ability to fully realize the value of our technology license agreement,
which is our principal asset;
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our
inability to enter into acceptable sublicensing agreements with respect to
our technology or the inability of any sublicensee to successfully
manufacture, market or sell biofuel utilizing our licensed
technology;
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market
acceptance of our biofuel;
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our
inability to compete effectively in the renewable fuels
market;
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governmental
regulation and oversight, including our ability to qualify our biofuel for
certain tax credits and renewable portfolio
standards;
|
|
|
·
|
our
ability to protect our technology through intellectual property
rights;
|
|
|
·
|
unexpected
costs and operating deficits;
|
|
|
·
|
adverse
results of any material legal proceedings;
and
|
|
|
·
|
other
specific risks set forth under the heading “Risk Factors” of this
prospectus supplement.
|
Further
information on the factors and risks that could affect our business, financial
condition and results of operations, are set forth in this prospectus supplement
under “Risk Factors” and in our filings with the SEC, which are available at
www.sec.gov
.
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.
USE
OF PROCEEDS
We
estimate that the net proceeds of this offering, after deducting placement agent
fees and our estimated offering expenses, and excluding the proceeds, if any,
from the exercise of the warrants issued in this offering, will be approximately
$437,000.
We intend to use the net proceeds
received from the sale of the securities to fund operations and for working
capital and general corporate purposes. We may also repay a portion
of our secured convertible notes due July 29, 2010. We cannot estimate precisely
the allocation of the net proceeds from this offering. Accordingly, our
management will have broad discretion in the application of the net proceeds of
this offering.
DILUTION
Our net tangible book value as of March
31, 2010, was approximately $(5,479,567), or approximately $(0.15) per share of
common stock. Net tangible book value per share is determined by dividing our
net tangible book value, which consists of our total tangible assets less total
liabilities, by the number of shares of our common stock outstanding on June 1,
2010.
Dilution in net tangible book value per
share represents the difference between the amount per share of common stock
paid by purchasers in this offering and the net tangible book value per share of
our common stock immediately after this offering. Without taking into account
any other changes in the net tangible book value after March 31, 2010, other
than to give effect to our receipt of the estimated proceeds from the sale of
1,111,112 shares of common stock, at an offering price of $0.45 per share, less
the placement agent’s fees and our estimated offering expenses, our net tangible
book value as of March 31, 2010, after giving effect to the items above, would
have been approximately $(5,014,567), or approximately $(0.13) per share of
common stock. This represents an immediate increase of $0.02 in net tangible
book value per share to our existing shareholders and an immediate dilution of
$0.58 per share to purchasers in this offering. The following table illustrates
this calculation on a per share basis:
|
Public
offering price per share
|
|
|
|
|
$
|
0.45
|
|
|
Net
tangible book value as of March 31, 2010 per share as of June 1,
2010
|
|
$
|
(0.15
|
)
|
|
|
|
|
|
Increase
per share attributable to the offering
|
|
$
|
0.02
|
|
|
|
|
|
|
Adjusted
net tangible book value as of March 31, 2010 per share as of June 1, 2010
after giving effect to this offering
|
|
|
|
|
|
$
|
(0.13
|
)
|
|
Dilution
per share to new investors
|
|
|
|
|
|
$
|
0.58
|
|
The foregoing table is based on
36,471,249 shares of common stock outstanding as of June 1, 2010, which does not
take into effect further dilution to new investors that could occur upon the
exercise of outstanding options having a per share exercise price less than the
offering price.
In
addition, the calculations in the foregoing table do not take into account any
of the following:
|
|
·
|
10,381,059
shares subject to outstanding options as of June 1, 2010, having a
weighted average exercise price of $2.81 per
share;
|
|
|
·
|
12,841,141 shares of
our common stock issuable upon exercise of outstanding warrants as of
June
1, 2010, having an exercise price of $1.74 per
share;
|
|
|
·
|
372,610
shares of common stock available for future issuance under our Omnibus
Incentive Plan;
|
|
|
·
|
1,802,531
shares of common stock issuable upon the conversion of outstanding Series
B convertible preferred stock, at a conversion price of $3.00 per share
(which convert automatically in March 2011);
and
|
|
|
·
|
555,556
shares issuable upon the exercise of warrants to be issued in this
offering, at an exercise price of $0.60 per share;
and
|
|
|
·
|
55,556
shares issuable upon the exercise of warrants, at an exercise price of
$0.75 per share, to be issued to the placement agent in consideration for
their services in this Offering.
|
To the extent that any options or
warrants are exercised, restricted stock units are settled, new options or other
equity awards are issued under our Omnibus Incentive Plan, or we otherwise issue
additional shares of common stock in the future, there will be further dilution
to new investors.
DESCRIPTION
OF SECURITIES
The
material terms and provisions of the warrants being offered pursuant to this
prospectus supplement are summarized below. The form of warrant will be provided
to each purchaser in this offering and will be filed as an exhibit to a Current
Report on Form 8-K with the SEC in connection with this offering.
Common
Stock
The material terms and provisions of
our common stock are described under the caption “Description of Securities –
Common Stock” starting on page 5 of the accompanying prospectus.
Warrants
Each purchaser of a share of Common
Stock will receive one warrant representing the right to purchase 0.50 shares of
our common stock at an exercise price of $0.60 per share. The warrants will be
exercisable at the option of the holder at any time after the date that is six
months from the date of issuance, which will be the closing date of this
offering, through and including the date that is the fifth anniversary of
the initial exercise date.
Warrants may be exercised in whole or
in part, and any portion of a warrant not exercised prior to the termination
date shall be and become void and of no value. Holders of the warrants may
exercise their warrants to purchase shares of our common stock on or before the
termination date by delivering a notice of exercise, appropriately completed and
duly signed, and payment of the exercise price for the number of shares for
which the warrant is being exercised. Upon the holder’s exercise of a warrant,
we will issue the shares of common stock issuable upon exercise of the warrant
within three trading days of our receipt of notice of exercise and payment of
the aggregate exercise price, subject to surrender of the warrant.
In the event that the registration
statement relating to the warrant shares is not effective and another exemption
from registration is not available, a holder of warrants will have the right, in
its sole discretion, to exercise its warrants for a net number of warrant shares
pursuant to the cashless exercise procedures specified in the warrants. The
absence of an effective registration statement or applicable exemption from
registration does not alleviate our obligation to deliver common stock issuable
upon exercise of a warrant.
The exercisability of the warrants may
be limited in certain circumstances if, upon exercise, the holder (together with
the holder’s affiliates and any other persons or entities acting together with
the holder as a group) would hold more than 4.99% of our total common stock
issued and outstanding. The holder of the warrant has the ability, upon
providing us not less than 61 days’ prior written notice, to increase or
decrease the foregoing percentage, provided that the percentage cannot at any
time exceed 4.99%.
The exercise price is subject to
appropriate adjustment in the event of stock dividends, stock splits,
reorganizations or similar events affecting our common stock and the exercise
price and number of warrants held by a purchaser (or such purchaser’s direct or
indirect transferee) are subject to appropriate adjustment in the event of cash
dividends or other distributions to holders of shares of our common
stock.
If, at any time the warrant is
outstanding, we consummate any fundamental transaction, as described in the
warrants and generally including any consolidation or merger into another
corporation, the consummation of a transaction whereby another entity acquires
more than 50% of our outstanding common stock, or the sale of all or
substantially all of our assets, or other transaction in which our common stock
is converted into or exchanged for other securities or other consideration, the
holder of any warrants will thereafter receive upon exercise of the warrants,
the securities or other consideration to which a holder of the number of
shares of common stock then deliverable upon the exercise or conversion of such
warrants would have been entitled upon such consolidation or merger or other
transaction.
The shares of common stock issuable on
exercise of the warrants will be, when issued in accordance with the warrants,
duly authorized, validly issued, fully paid and non-assessable. We will
authorize and reserve at least that number of shares of common stock equal to
the number of shares of common stock issuable upon exercise of all
outstanding warrants.
There is no established public trading
market for the warrants, and we do not expect a market to develop. We do not
intend to apply to list the warrants on any securities exchange. Without an
active market, the liquidity of the warrants will be limited. In addition, in
the event our common stock price does not exceed the per share exercise price of
the warrants during the period when the warrants are exercisable, the warrants
will not have any value.
Amendments and waivers of the terms of
the warrants require the written consent of the holders of warrants and the
Company.
THE HOLDER OF A WARRANT WILL NOT
POSSESS ANY RIGHTS AS A SHAREHOLDER UNDER THAT WARRANT UNTIL THE HOLDER
EXERCISES THE WARRANT. THE WARRANTS MAY BE TRANSFERRED INDEPENDENT OF THE COMMON
STOCK WITH WHICH THEY WERE ISSUED, SUBJECT TO APPLICABLE LAWS.
PLAN OF DISTRIBUTION
We have entered into a placement agent
agreement, dated June 10, 2010, with Rodman & Renshaw, LLC (“Rodman”), the
placement agent for this offering. The placement agent agreement is included as
an exhibit to our Current Report on Form 8-K that we have filed with the
Securities and Exchange Commission in connection with this
offering.
Subject
to the terms and conditions set forth in the placement agent agreement, Rodman
has agreed to act as our placement agent in connection with this offering. The
placement agent is not purchasing or selling any securities being offered by
this prospectus supplement or the accompanying prospectus, nor is it required to
arrange for the purchase or sale of any specific number or dollar amount of the
shares, but has agreed to use its reasonable best efforts to arrange for the
sale of all of the shares in this offering.
There is
no requirement that any minimum number of shares or dollar amount be sold in
this offering and there can be no assurance that we will sell all or any of the
shares being offered.
Our agreement with the placement agent
provides that the obligations of the placement agent and the investors are
subject to certain conditions precedent. The placement agent agreement also
contains customary representations and warranties which are incorporated into
the securities purchase agreement investors are required to sign to subscribe
for shares in this offering. Copies of the form of securities purchase agreement
(and form of warrant attached thereto) and the placement agent agreement are
being or have been circulated with this Prospectus Supplement, and are
incorporated herein by reference. Final forms of the form of securities purchase
agreement, form of warrant and placement agent agreement will be included as
exhibits to our Current Report on Form 8-K that will be filed with the SEC in
connection with the consummation of this offering.
We currently anticipate that the
closing of this offering will take place on or about June 15, 2010. On the
scheduled closing date, the following will occur:
|
|
·
|
we
will receive funds in the amount of the aggregate purchase
price;
|
|
|
·
|
the
placement agent will receive the placement agent fees and compensation
warrants to purchase shares of our common stock in accordance with the
terms of the engagement letter agreement;
and
|
|
|
·
|
we
will deliver the shares and warrants to the
investors.
|
We have agreed to pay the placement
agent an aggregate fee equal to seven percent (7%) of the aggregate gross
proceeds raised in this offering. We have also agreed to grant compensation
warrants to the placement agent to purchase that number of our shares of common
stock equal to five percent (5%) of the number of shares of common stock sold by
us in this offering at an exercise price of $0.75 per share. In compliance with
the guidelines of FINRA, under no circumstances will the fee, commission or
discount received by the placement agent or any other FINRA member or
independent broker-dealer exceed 8.0% of the gross proceeds to us in this
offering.
We have
agreed to indemnify the placement agent against certain liabilities, including
liabilities under the Securities Act of 1933, as amended, and liabilities
arising from breaches of representations and warranties contained in the
placement agent agreement. We have also agreed to contribute to payments the
placement agent may be required to make in respect of such
liabilities.
The compensation warrants will be
substantially on the same terms as the warrants offered hereby and will also
comply with FINRA Rule 5110(g)(1) in that for a period of six months after their
date of issuance (which shall not be earlier than the closing date of this
offering), neither the compensation warrants nor any shares issued upon exercise
of the compensation warrants shall be sold, transferred, assigned, pledged, or
hypothecated, or be the subject of any hedging, short sale, derivative, put, or
call transaction that would result in the effective economic disposition of the
securities by any person, except the transfer of any security:
|
|
·
|
by
operation of law or by reason of reorganization of
us;
|
|
|
·
|
to
any FINRA member firm participating in this offering and the officers or
partners thereof, if all securities so transferred remain subject to the
lock-up restriction described above for the remainder of the time
period;
|
|
|
·
|
if
the aggregate amount of our securities held by Rodman or related persons
do not exceed 1% of the securities being
offered;
|
|
|
·
|
that
is beneficially owned on a pro-rata basis by all equity owners of an
investment fund, provided that no participating member manages or
otherwise directs investments by the fund, and participating members in
the aggregate do not own more than 10% of the equity in the fund;
or
|
|
|
·
|
the
exercise or conversion of any security, if all securities received remain
subject to the lock-up restriction set forth above for the remainder of
the time period.
|
The
transfer agent for our common stock to be issued in this offering is Olde
Monmouth Stock Transfer Co., Inc., 200 Memorial Parkway, Atlantic Highlands, New
Jersey 07716.
LEGAL MATTERS
The
validity of the securities offered hereby has been passed upon for us by Hogan
Lovells US LLP, Washington, D.C. Weinstein & Smith LLP, New York,
NY, has acted as counsel to the placement agent.
EXPERTS
The consolidated financial statements
as of December 31, 2009 and 2008, and the related consolidated statements of
operations, shareholders’ equity, and cash flows for the years ended December
31, 2009 and 2008 incorporated in this prospectus by reference from our Annual
Report on Form 10-K for the years ended December 31, 2009 and 2008, which have
been audited by Reznick Group, P.C. and Imowitz Koenig & Co., LLP,
respectively, independent registered public accounting firms, as stated in their
reports, which are incorporated herein by reference, and has been so
incorporated in reliance upon the report of such firms given their authority as
experts in accounting and auditing.
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, 2009
(SEC File No. 001-34022), as
amended;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarters ended March 31, 2010 (SEC
File No. 001-34022), as amended if
applicable;
|
|
|
·
|
our
Current Reports on Form 8-K filed with the SEC on April 2, 2010, May
6, 2010 and May 13, 2010 (SEC File No. 001-34022), except for portions of
such reports which were deemed to be furnished and not filed;
and
|
|
|
·
|
the
description of our capital stock contained in our Registration Statement
on Form 8-A filed with the SEC on April 14, 2008 and as amended September
22, 2008 (SEC File No. 001-34022).
|
We
incorporate by reference any additional documents that we may file with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 from the date of the registration statement of which this prospectus
supplement and accompanying 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 prospectus
supplement, 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. We are not
incorporating by reference any documents, or portions of documents that are not
deemed “filed” with the SEC.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and special reports, proxy statements and other documents with
the SEC. You may read and copy any document we file at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549. You should call
1-800-SEC-0330 for more information on the public reference room. The SEC
maintains an Internet website at
www.sec.gov
that
contains reports, proxy and information statements, and other information
regarding issuers of securities, like us, that file electronically with the SEC.
Our SEC filings are available to you on the SEC’s Internet website. We also
maintain a website at
www.newgenerationbiofuels.com
,
which provides additional information about our company. The contents of
our website or any other website, however, are not a part of this prospectus and
is not incorporated by reference into this prospectus or any accompanying
prospectus supplement.
This
prospectus supplement and accompanying prospectus is part of a registration
statement that we filed with the SEC. The registration statement, including
certain exhibits and schedules and the information incorporated by reference,
contains more information than this prospectus supplement or accompanying
prospectus regarding us and our securities. You can obtain a copy of the
registration statement from the SEC at the address listed above or from the
SEC’s Internet site.
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
5850
Waterloo Road, Suite 140
Columbia,
Maryland 21045
(410)
480-8084
Website:
www.newgenerationbiofuels.com
The
information in this prospectus is not complete and may be changed. We
may not sell these securities until the Securities and Exchange Commission
declares our registration statement 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 January 15, 2009
PROSPECTUS
$10,000,000
NEW
GENERATION BIOFUELS HOLDINGS, INC.
Preferred
Stock
Common
Stock
Warrants
We may
offer and sell from time to time shares of our preferred stock, common stock,
warrants to purchase shares of our common stock, or any combination thereof, in
one or more offerings in amounts, at prices and on terms that we determine at
the time of the offering, with an aggregate initial offering price of up to
$10,000,000. Each time we offer securities, we will provide a
prospectus supplement containing more information about the particular offering
together with this prospectus. The prospectus supplement also may
add, update or change information contained in this prospectus. This
prospectus may not be used to offer and sell securities without a prospectus
supplement.
The
securities may be sold directly by us to investors, through agents designated
from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section
entitled “Plan of Distribution” in this prospectus. If any agents or
underwriters are involved in the sale of any securities, the names of such
agents or underwriters and any applicable fees, commissions, discounts and
over-allotment options will be set forth in the applicable prospectus
supplement.
Our
common stock is traded on the NASDAQ Capital Market under the symbol “NGBF.” On
Janary 14, 2009, the closing sale price of our common stock on the NASDAQ
Capital Market was $1.00 per share. None of our other securities are
currently publicly traded. As of January 14, 2009, the aggregate market
value of our outstanding common stock held by non-affiliates was $11,564,602,
based on 20,280,614 shares of outstanding common stock, of which 11,564,602
shares were held by non-affiliates, and a per share price of $1.00 based on the
closing sale price of our common stock on that date. We have not offered
any securities during the period of 12 calendar months immediately prior to, and
including, the date of this prospectus pursuant to General Instruction I.B.6. of
Form S-3.
Investing
in these securities involves a high degree of risk. Please carefully review the
section entitled Risk Factors beginning on page 2 of this prospectus and in
the applicable prospectus supplement and the risk factors that are incorporated
by reference in this prospectus from our Securities and Exchange Commission
filings.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is January __, 2009.
TABLE
OF CONTENTS
|
|
|
|
ABOUT
THIS PROSPECTUS
|
1
|
|
|
|
|
OUR
COMPANY
|
1
|
|
|
|
|
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
2
|
|
|
|
|
RISK
FACTORS
|
2
|
|
|
|
|
USE
OF PROCEEDS
|
3
|
|
|
|
|
DESCRIPTION
OF SECURITIES
|
4
|
|
|
|
|
PLAN
OF DISTRIBUTION
|
7
|
|
|
|
|
LEGAL
MATTERS
|
9
|
|
|
|
|
EXPERTS
|
9
|
|
|
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
10
|
|
|
|
|
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
|
10
|
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or SEC, using a “shelf” registration process. Under
this shelf process, we may sell any one or more or a combination of the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $10,000,000. We have provided to you in this prospectus a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. We may also add, update or change
in the prospectus supplement any of the information contained in this
prospectus. If there is an inconsistency between the information in this
prospectus and a prospectus supplement, you should rely on the information in
the prospectus supplement. You should read carefully both this prospectus
and the applicable prospectus supplement together with the documents we
incorporate by reference into this prospectus as described below under the
heading “Incorporation of Certain Information By Reference” before making an
investment decision.
The
registration statement that contains this prospectus, including the exhibits to
the registration statement and the information incorporated by reference,
provides additional information about the securities offered under this
prospectus. That registration statement can be read at the SEC web site or at
the SEC public reference room as discussed below under the heading “Where You
Can Find More Information.”
You
should rely only on the information provided in the registration statement, this
prospectus and in any prospectus supplement, including the information
incorporated by reference. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus or any supplement to this prospectus is accurate at any date other
than the date indicated on the cover page of these documents. We are
not making an offer to sell these securities in any jurisdiction where the offer
or sale is not permitted.
OUR
COMPANY
We are a development stage renewable
biofuels provider that is marketing a new class of “second generation” biofuels
for use in power generation, commercial and industrial heating and marine
transportation. We produce our biofuels using a proprietary blending
technology that we believe is simpler, cleaner, less expensive, and less energy
intensive than the complex chemical reaction process used to produce traditional
biodiesel. We believe that this technology enables us to produce
biofuels that cost less to produce, use less energy and generate significantly
lower emissions than our competitors. Our technology also gives us
the flexibility to produce our biofuel from multiple feedstocks, which allows us
to use non-edible raw materials in our production process, when
desirable. We believe that these factors will enable us to customize
our product to specific customer requirements and react more quickly to trends
in the biofuels market. Our business model calls for establishing
direct sales with customers from manufacturing plants that we may lease,
purchase or build and sublicensing our technology to qualified
licensees.
Our principal executive office is
located at 1000 Primera Boulevard, Suite 3130 Lake Mary, Florida
32746. Our telephone number is (321) 363-5100. Our website
is
www.newgenerationbiofuels.com
. The
information on our website or any other website is not incorporated by reference
into this prospectus or any accompanying prospectus supplement.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference 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 to continue as a going
concern;
|
|
|
·
|
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 “biodiesel,” 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 2 of this
prospectus.
|
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 prospectus, 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.
RISK
FACTORS
Investing in our securities involves a
high degree of risk. Before making an investment decision, you should
carefully consider the risk factors described in our SEC filings that are
incorporated by reference in
this prospectus and, if
applicable, in any accompanying prospectus supplement used in connection with an
offering of our securities
.
Additional risks,
including those that relate to any particular securities we offer, may be
included in the applicable prospectus supplement.
If any of the
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
Unless we
specify another use in the applicable prospectus supplement, we will use the net
proceeds from the sale of any securities offered by us for general corporate
purposes, which may include working capital and/or capital
expenditures. We may set forth additional information on the use of
net proceeds from the sale of securities we offer under this prospectus in a
prospectus supplement related to a specific offering.
DESCRIPTION
OF SECURITIES
The
following description, together with the additional information that we include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the securities that we may offer under this prospectus. We will
describe in the applicable prospectus supplement relating to any securities the
particular terms of the securities offered by that prospectus supplement. If
indicated in the applicable prospectus supplement, the terms of the securities
may differ from the terms we have summarized below. We also may include in the
prospectus supplement information, where applicable, about material United
States federal income tax considerations relating to the securities, and the
securities exchange, if any, on which the securities will be
listed.
We are currently authorized to issue
100,000,000 shares of common stock, par value $0.001 per share and 10,000,000
shares of preferred stock, par value $0.001 per share. As of January 14, 2009,
20,280,614 shares of common stock, 26,400 shares of Series A Cumulative
Convertible Preferred Stock and 70,851 shares of Series B Cumulative Convertible
Preferred Stock were outstanding. We will limit the number of shares
of preferred stock, common stock or warrants that can be offered or sold under
any prospectus supplement to the number of authorized but unissued shares not
previously reserved for issuance.
The following summary
description of our preferred and common stock is based on our articles of
incorporation and our bylaws in effect as of the date of this prospectus and the
applicable provisions of the Florida Business Corporation Act. The
terms of any series of preferred stock we offer pursuant to this prospectus will
be set forth in an amendment to our articles of incorporation and summarized in
the applicable prospectus supplement. For more information on how you can obtain
copies of our articles of incorporation, any amendments and our bylaws, see
“Where You Can Find More Information” beginning on page 10.
Preferred
Stock
Our articles of incorporation provides
that we may issue shares of preferred stock from time to time in one or more
series. Our board of directors is authorized to fix the number of shares of any
series of preferred stock and to determine the designation of any such
series. The board of directors is also authorized to determine or
alter the rights, preferences, privileges and restrictions of any unissued
series of preferred stock to fix the number of shares constituting such series
and to increase or decrease (but not below the number of shares of such series
then outstanding) the number of shares of any such series. Any series
of preferred stock could have rights which would adversely affect the rights of
a holder of common stock. The shares of any series of preferred stock
need not be identical to any other class or series.
In the event that we offer preferred
stock, you should refer to the applicable prospectus supplement relating to the
series of preferred stock being offered for the specific terms of that series,
including some or all of the following:
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the
title of the series and the number of shares in the
series;
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the
price at which the preferred stock will be
offered;
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the
dividend rate or rates or method of calculating the rates, the dates on
which any dividends will be payable, whether or not dividends will be
cumulative or noncumulative and, if cumulative, the dates from which
dividends on the preferred stock being offered will cumulate, whether any
dividends will be payable in cash, securities, other property or a
combination of the foregoing;
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the
voting rights, if any, of the holders of shares of the preferred stock
being offered;
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the
provisions for a sinking fund, if any, and the provisions for redemption,
if applicable, of the preferred stock being
offered;
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the
liquidation preference per share;
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the
terms and conditions, if applicable, upon which the preferred stock being
offered may be convertible into common stock (including any mandatory
conversion provisions),
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any
listing of the preferred stock being offered on any securities
exchange;
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the
relative ranking and preferences of the preferred stock being offered as
to dividend rights and rights upon any liquidation, dissolution or winding
up of our affairs;
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any
limitations on the issuance of any series of preferred stock ranking
senior or equal to the series of preferred stock being offered as to
dividend rights and rights upon any liquidation, dissolution or winding up
of our affairs;
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any
limitations on our ability to take certain actions without the consent of
a specified number of holders of preferred
stock;
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any
anti-dilution provisions; and
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any
additional designations, powers, preferences and the relative,
participating, optional or other rights and the qualifications,
limitations and restrictions of the
series.
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Common
Stock
Holders
of our common stock are entitled to one vote for each share on all matters
submitted to a shareholder vote. Holders of common stock do not have
cumulative voting rights. Therefore, holders of a majority of the shares of
common stock voting for the election of directors can elect all of the
directors. Holders of our common stock representing a majority of the voting
power of our capital stock issued and outstanding and entitled to vote,
represented in person or by proxy, are necessary to constitute a quorum at any
meeting of our shareholders. A vote by the holders of a majority of our
outstanding shares is required to effectuate certain fundamental corporate
changes such as liquidation, merger or an amendment to our articles of
incorporation.
Holders of common stock are entitled to
share in all dividends that the board of directors, in its discretion, declares
upon the common stock from legally available funds, subject to any preferential
rights. In the event of a liquidation, dissolution or winding up, each
outstanding share entitles its holder to participate pro rata in all assets that
remain after payment of liabilities and after providing for each class of stock,
if any, having preference over the common stock. Holders of our common stock
have no pre-emptive rights, no conversion rights and there are no redemption
provisions applicable to our common stock.
Warrants
We may
issue warrants to purchase common stock or other securities. We may issue
warrants independently or together with other securities. Warrants sold with
other securities may be attached to or separate from the other securities. We
may issue warrants under one or more warrant agreements to be entered into
between the company, and a warrant agent that we would name in the applicable
prospectus supplement.
We will
describe in the applicable prospectus supplement the terms of the series of
warrants, including some or all of the following:
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the
title of the warrants;
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the
offering price and aggregate number of warrants to be
offered;
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the
exercise price of the warrants;
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the
number of shares of common stock or other securities that can be purchased
upon the exercise of an individual
warrant;
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the
dates or periods during which the warrants are
exercisable;
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if
applicable, the designation and terms of any securities with which the
warrants are issued;
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if
the warrants are issued as a unit with another security, the date on and
after which the warrants and the other security will be separately
transferable;
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the
terms of any rights to redeem or call the
warrants;
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any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants;
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the
effect of any merger, consolidation, sale or other disposition of our
business on the warrants;
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any
minimum or maximum amount of warrants that may be exercised at any one
time;
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any
terms relating to the modification of the
warrants;
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any
terms, procedures and limitations relating to the transferability,
exchange or exercise of the warrants;
and
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any
other specific terms of the
warrants.
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Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities
purchasable upon exercise, including the right to receive dividends, if any, or
payments upon our liquidation, dissolution or winding up or to exercise voting
rights, if any.
For more
information on how you can obtain copies of the applicable warrants, see “Where
You Can Find More Information” beginning on page 10. We urge you to
read the applicable warrant and any applicable prospectus supplement in their
entirety.
PLAN
OF DISTRIBUTION
Pursuant
to General Instruction I.B.6 of Form S-3, we are permitted to use the
registration statement of which this prospectus forms a part to sell a maximum
amount of securities equal to one-third (33.33%) of the aggregate market value
of our outstanding, publicly held voting and non-voting common equity in any 12
month period. We may, from time to time, offer and sell the securities
registered hereby up to this maximum amount.
We may
sell the securities offered by this prospectus in one or more of the following
ways from time to time:
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to
or through underwriters or dealers;
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directly
to purchasers, including our
affiliates;
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through
a block trade in which the broker or dealer engaged to handle the block
will attempt to sell the securities as agent, but may position and resell
a portion of the block as principal to facilitate the transaction;
or
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through
a combination of any of these methods of
sale.
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We may distribute the securities from
time to time in one or more transactions at a fixed price or prices, which may
be changed from time to time, at market prices prevailing at the time of sale,
at prices related to prevailing market prices or at negotiated
prices. We may engage in “at the market” offerings of our common
stock. An “at the market” offering is an offering of our common stock
at other than a fixed price to or through a market maker.
We will
set forth in a prospectus supplement the terms of the offering of our
securities, including some or all of the following:
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the
type and amount of securities we are
offering;
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the
purchase price of our securities being offered and the net proceeds we
will receive from the sale;
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the
method of distribution of the securities we are
offering;
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the
name or names of any agents, underwriters or
dealers;
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any
over-allotment options under which underwriters may purchase additional
securities from us;
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any
underwriting discounts and commissions or agency fees and commissions and
other items constituting underwriters’ or agents’
compensation;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
securities exchanges on which such securities may be
listed.
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Sale
Through Underwriters or Dealers
If we use
an underwriter or underwriters in the sale of securities offered by this
prospectus, the underwriters will acquire the securities for their own account,
including through underwriting, purchase, security lending or repurchase
agreements with us. The underwriters may resell the securities from time to time
in one or more transactions, including negotiated transactions. Underwriters may
sell the securities in order to facilitate transactions in any of our other
securities (described in this prospectus or otherwise), including other public
or private transactions and short sales. Underwriters may offer securities to
the public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more firms acting as underwriters.
Unless otherwise indicated in the prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all the offered securities if
they purchase any of them. The underwriters may change from time to time any
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers.
If we use
an underwriter or underwriters in the sale of securities, we will execute an
underwriting agreement with the underwriter or underwriters at the time we reach
an agreement for sale. We will set forth in the applicable prospectus supplement
the names of the specific managing underwriter or underwriters, as well as any
other underwriters, and the terms of the transactions, including compensation of
the underwriters and dealers. This compensation may be in the form of discounts,
concessions or commissions.
We may
grant to the underwriters options to purchase additional securities to cover
over-allotments, if any, at the public offering price with additional
underwriting discounts or commissions. If we grant any over-allotment option,
the terms of any over-allotment option will be set forth in the prospectus
supplement relating to those securities.
Sale
Through Dealers
If we use
dealers in the sale of the securities offered by this prospectus, we or an
underwriter will sell the securities to them as principals. The dealers may then
resell those securities to the public at varying prices to be determined by the
dealers at the time of resale. The applicable prospectus supplement will set
forth the names of the dealers and the terms of the transactions.
Direct
Sales
We may
directly solicit offers to purchase the securities offered by this prospectus.
In this case, no underwriters or agents would be involved. We may sell the
securities directly to institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any sale
of those securities. The terms of any such sales will be described in the
prospectus supplement.
Sales
Through Agents
Securities
also may be offered and sold through agents designated from time to time. The
prospectus supplement will name any agent involved in the offer or sale of the
securities and will describe any commissions payable to the agent. Unless
otherwise indicated in the applicable prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for the period of
its appointment. Any agent may be deemed to be an underwriter within the
meaning of the Securities Act with respect to any sale of those
securities.
Delayed
Delivery Contracts
If the
applicable prospectus supplement indicates, we may authorize agents,
underwriters or dealers to solicit offers from institutions to purchase
securities at the public offering price under delayed delivery contracts. These
contracts would provide for payment and delivery on a specified date in the
future. Institutions with which contracts of this type may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, but in all cases those
institutions must be approved by us. The obligations of any purchaser
under any contract of this type will be subject to the condition that the
purchase of the securities shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which the purchaser is subject. The
applicable prospectus supplement will describe the commission payable for
solicitation of those contracts.
Market
Making, Stabilization and Other Transactions
Our
common stock is listed on the NASDAQ Capital Market. Any common stock sold
pursuant to a prospectus supplement will be eligible for listing and trading on
the NASDAQ Capital Market, subject to official notice of issuance. Unless the
applicable prospectus supplement states otherwise, each other class or series of
securities issued will be a new issue and will have no established trading
market. We may elect to list any other class or series of securities on an
exchange, but we are not currently obligated to do so. Any underwriters that we
use in the sale of offered securities may make a market in such securities, but
may discontinue such market making at any time without notice. Therefore, we
cannot assure you that the securities will have a liquid trading
market.
Any
underwriter also may engage in stabilizing transactions, syndicate covering
transactions and penalty bids in accordance with Regulation M under the
Securities Exchange Act of 1934, as amended. Stabilizing transactions involve
bids to purchase the underlying security in the open market for the purpose of
pegging, fixing or maintaining the price of the securities. Syndicate covering
transactions involve purchases of the securities in the open market after the
distribution has been completed in order to cover syndicate short
positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a syndicate
member when the securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short positions.
Stabilizing transactions, syndicate covering transactions and penalty bids may
cause the price of the securities to be higher than it would be in the absence
of the transactions. The underwriters may, if they commence these transactions,
discontinue them at any time.
Derivative
Transactions and Hedging
The underwriters or other agents may
engage in derivative transactions involving the securities. These derivatives
may consist of short sale transactions and other hedging activities. The
underwriters or agents may acquire a long or short position in the securities,
hold or resell securities acquired and purchase options or futures on the
securities and other derivative instruments with returns linked to or related to
changes in the price of the securities. In order to facilitate these derivative
transactions, we may enter into security lending or repurchase agreements with
the underwriters or agents. The underwriters or agents may effect the derivative
transactions through sales of the securities to the public, including short
sales, or by lending the securities in order to facilitate short sale
transactions by others. The underwriters or agents also may use the securities
purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or
indirectly settle sales of the securities or close out any related open
borrowings of the securities.
General
Information
Agents,
underwriters, and dealers may be entitled, under agreements entered into with
us, to indemnification by us against specified liabilities, including
liabilities under the Securities Act, or to contribution by us to payments they
may be required to make in respect to such liabilities. The
applicable prospectus supplement will describe the terms and conditions of
indemnification or contribution. Some of our agents, underwriters, and dealers,
or their affiliates, may be customers of, engage in transactions with or perform
services for us, in the ordinary course of business. We will describe in
the prospectus supplement the nature of any such relationship and the name of
the parties involved. Any lockup arrangements will be set forth in the
applicable prospectus supplement.
LEGAL
MATTERS
Unless otherwise specified in the
applicable prospectus supplement, Hogan & Hartson LLP, 555 Thirteenth
Street, N.W., Washington, D.C. 20004, will pass upon the validity of the
securities covered by 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,
and for the period from February 28, 2006 (inception) to December 31, 2007
incorporated in this prospectus by reference from our Annual Report on Form 10-K
for the year ended December 31, 2007 and 2006 have been audited by Imowitz
Koenig & Co., LLP, an independent registered public accounting firm, as
stated in their report, which is incorporated herein by reference, and has been
so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and special reports, proxy statements and other documents with
the SEC. You may read and copy any document we file at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549. You should call
1-800-SEC-0330 for more information on the public reference room. The SEC
maintains an Internet website at
www.sec.gov
that
contains reports, proxy and information statements, and other information
regarding issuers of securities, like us, that file electronically with the SEC.
Our SEC filings are available to you on the SEC’s Internet website. We
also maintain a website at
www.newgenerationbiofuels.com
,
which provides additional information about our company. The contents of
our website or any other website, however, are not a part of this prospectus and
is not incorporated by reference into this prospectus or any accompanying
prospectus supplement.
This
prospectus is part of a registration statement that we filed with the SEC. The
registration statement, including certain exhibits and schedules and the
information incorporated by reference, contains more information than this
prospectus regarding us and our securities. You can obtain a copy of the
registration statement from the SEC at the address listed above or from the
SEC’s Internet site.
You can
also obtain these documents from us, without charge (other than exhibits, unless
the exhibits are specifically incorporated by reference), by requesting them in
writing or by telephone at the following address:
New
Generation Biofuels Holdings, Inc.
Attn:
Cary J. Claiborne
1000
Primera Boulevard, Suite 3130
Lake
Mary, FL 32746
(321)
363-5100
Website:
www.newgenerationbiofuels.com
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by
reference” information into this prospectus. This means that we can disclose
important information to you by referring you to another document filed
separately with the SEC. The information incorporated by reference is
considered to be a part of this prospectus, except for any information that is
superseded by other information that is included in or incorporated by reference
into this document. We incorporate by reference each of the documents
listed below:
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our
Annual Report on Form 10-K for the year ended December 31, 2007
(SEC File Nos. 000-51903 and 001-34022), as amended;
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008, June
30, 2008 and September 30, 2008 (SEC File No. 001-34022), as amended if
applicable;
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our
Current Reports on Form 8-K filed with the SEC on January 11, 2008,
February 25, 2008, March 27, 2008, March 31, 2008, April 22, 2008, May 14,
2008, June 6, 2008, September 18, 2008, October 17, 2008 (amendment to
Form 8-K filed on September 18, 2008) and November 17, 2008 (SEC File No.
000-51903 and 001-34022), except for portions of such reports which were
deemed to be furnished and not filed; and
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the
description of our capital stock contained in our Registration Statement
on Form 8-A filed with the SEC on April 14, 2008 and as amended September
22, 2008 (SEC File No. 001-34022).
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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.
NEW
GENERATION BIOFUELS HOLDINGS, INC.
$10,000,000
Preferred
Stock
Common
Stock
Warrants
Prospectus
January
___, 2009
NEW
GENERATION BIOFUELS HOLDINGS, INC.
1,111,112
Shares of Common Stock
Warrants
to Purchase 555,556 Shares of Common Stock
Prospectus
Supplement
June
10, 2010
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