U
NITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
/A
(Amendment No. 1)
[X]
ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year
ended
December 31, 2016
[ ]
TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________ to________________
Commission fil
e number 333-145939
CleanTech Biofuels, Inc.
(
Exact Name of Registrant as Specified in Its charter)
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Delaware
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33-0754902
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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73
86
Pershing Ave., University City, Mis
souri
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631
30
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(Address of principal executive offices)
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(Zip Code)
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(
Registrant's telephone number):
(314)
802
-
8670
Securities registered under Section 12(b) of the Exchange Act
:
None
Securities registered under Section 12(g) of the
Exchange Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes [ ] No [X]
Indicate by c
heck mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.
Yes
[ ] No [X]
Indicate by c
heck mark whether registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No []
Indicate by check mark whether the registrant has submitted electro
nically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T ( 232.405) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes [X] No [ ]
Indicate by c
heck mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (229.405) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
[X]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “
large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
[ ] Accelerated filer [ ]
Non-accelerated filer
[ ] (Do not check if a smaller reporting company)
Smaller reporting company [X] Emerging growth company [ ]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
[ ]
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Act). Yes[] No[X]
T
he aggregate market value of the voting and non-voting common equity held by non-affiliates as of
June 30, 2016 (the last business day of our most recently completed second quarter) - $2,863,064
As
of March 30, 2017, the number of shares outstanding of the Company's common stock was 94,188,413.
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (“Amendment No. 1”) to the registrant
’s Annual Report on Form 10-K for the year ended December 31, 2016 (the "Annual Report") is being filed solely to attach properly dated signatures of the registrant’s directors as required by General Instruction D of Form 10-K and to attach properly dated signatures to the certifications of the registrant’s principal executive officer and principal financial officer required by Item 601(b)(31) of Regulation S-K. Director approval was received prior to the March 31, 2017 filing date, but the Annual Report as filed inadvertently failed to include the properly dated directors’ signature pages. Therefore, the required signatures are set forth on the pages immediately following this Explanatory Note. In accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended, this Form 10-K/A contains only the cover page, Part IV – Item 15, this explanatory note, a signature page, and the revised certifications.
As required by the rules of the
Securities and Exchange Commission (the “SEC”), this Amendment No. 1 includes in Part IV new certifications of our Chief Executive Officer and Interim Chief Financial Officer (Exhibits 31.1, 31.2, 32.1 and 32.2).
Except as set forth above, no changes have been made to the Annual Report, and this Amendment No. 1 does not amend, modify or update the disclosures in the Annual Report in any way.
Accordingly, this Amendment No. 1 on Form 10-K/A should be read in conjunction with the Annual Report and the registrant’s other filings with the SEC.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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CleanTech Biofuels, Inc.
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(registrant)
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August 2
, 2017
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By:
/s/ Edward P. Hennessey, Jr.
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Edward P. Hennessey, Jr.
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Chief Executive Officer
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Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
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August 2
, 2017
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/s/ Edward P. Hennessey, Jr.
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Edward P. Hennessey, Jr., Chairman of the
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Board of Directors and Chief Executive Officer
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(principal executive officer)
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August 2
, 2017
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/s/ James Russell
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James Russell, Director
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August 2
, 2017
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/s/ Dr. David Bransby
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David Bransby, Director
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PART IV
I
TEM 1
5
.
Exhibits
,
Financial Statement Schedules
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(a)
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The following documents are filed as part of this report:
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Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2016 and 2015
Consolidated Statements of Operations for the years ended December 31,
2016, 2015 and 2014
Consolidated Statements of Changes in Stockholders Equity for the years ended December 31,
2016, 2015 and 2014
Consolidated Statements of Cash Flows for the years ended December 31,
2016, 2015 and 2014
Notes to Consolidated Financial Statements
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2.
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Exhibits:
See Index to Exhibits on pages 56-57 for a list of exhibits filed with this Form 10-K. Management contracts and compensatory plans or arrangements are identified with asterisk on the Index to Exhibits.
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INDEX TO EXHIBITS
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Exhibit
Number
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Description
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2.1
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Agreement and Plan of Merger and Reorganization by and among Cleantech Biofuels, Inc., Biomass NA Acquisition Subsidiary, Inc. and Biomass North America Licensing, Inc. dated as of July 14, 2008 (incorporated herein by reference to Exhibit 2.1 of the Registrant
’s quarterly report on Form 10-Q for the period ended June 30, 2008).
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3.1
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Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.1 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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3.2
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Restated By-Laws
(incorporated herein by reference to Exhibit 3.2 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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4.2
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Investors
’ Rights Agreement dated as of April 16, 2007 by and among SRS Energy, Inc. and certain Investors (incorporated herein by reference to Exhibit 4.2 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.1
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Technology License Agreement between Bio Products International, Inc. and SRS Energy, Inc. dated as of March 8, 2007 (incorporated herein by reference to Exhibit 10.4 of the Registrant
’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.
2*
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2007 Stock Option Plan
(incorporated herein by reference to Exhibit 10.7 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.3
*
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Form of Director Stock Option Agreement
(incorporated herein by reference to Exhibit 10.8 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.4
*
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Director Stock Purchase Agreement
(incorporated herein by reference to Exhibit 10.9 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.5
*
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Employment Agreement
– Edward P. Hennessey, Jr. (incorporated herein by reference to Exhibit 10.10 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.6
*
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Form of Employ
ee Agreement – Tom Jennewein (incorporated herein by reference to Exhibit 10.11 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.7*
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Form of Employee Stock Opti
on Agreement – Tom Jennewein (incorporated herein by reference to Exhibit 10.12 of the Registrant’s registration statement on Form SB-2 filed on September 10, 2007, File No. 333-145939).
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10.8
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Commercial Lease with Pershing Properties, LLC dated October 12, 2007
(incorporated herein by reference to Exhibit 10.13 of the Registrant’s registration statement on Form SB-2/A filed on November 30, 2007, File No. 333-145939).
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10.9
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Patent Purchase Agreement dated October 22, 2008 by and between Cleantech Biofuels, Inc. and World Waste Technologies, Inc. (incorporated herein by reference to Exhibit 10.15 of the Registrant
’s current report on Form 8-K filed on October 27, 2008).
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10.12
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Technology License and Joint Development Agreement among Biomass North America Licensing, Inc., Biomass North America, LLC and Anthony P. Noll
(incorporated herein by reference to Exhibit 10.18 of the Registrant’s quarterly report on Form 10-Q for the period ended September 30, 2008).
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10.13*
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Form of employee stock purchase agreement entered into with Edward P. Hennessey, Jr.
, Mike Kime and Tom Jennewein (incorporated herein by reference to Exhibit 10.20 of the Registrant’s annual report on Form 10-K for the period ended December 31, 2008).
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10.16
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Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporate herein by reference to Exhibit 10.20 of the Registrant
’s current report on Form 8-K filed on September 8, 2010).
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10.17
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Security Agreement between Cleantech Biofuels, Inc. and CMS Acquisition, LLC dated September 1, 2010 (incorporate
d herein by reference to Exhibit 10.21 of the Registrant’s current report on Form 8-K filed on September 8, 2010).
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10.18
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Amendment dated February 11, 2011 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporate
d herein by reference to Exhibit 10.22 of the Registrant’s current report on Form 8-K filed on February 16, 2011).
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10.19
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Amendment No. 2 dated May 31, 2011 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporate
d herein by reference to Exhibit 10.23 of the Registrant’s current report on Form 8-K filed on June 1, 2011).
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10.20
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Amendment No. 3 dated July 29, 2011 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporated herein by reference to Exhibit 10.24 of the Registrant
’s current report on Form 8-K filed on August 2, 2011).
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10.21*
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Form of Employee Stock Option Agreement
entered into with Edward P. Hennessey, Jr. and Tom Jennewein (incorporated herein by reference to Exhibit 10.25 of the Registrant’s current report on Form 8-K filed on August 31, 2011).
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10.22*
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Form of Director Stock Option Agreement (incorporated herein by reference to Exhibit 10.26 of the Registrant
’s current report on Form 8-K filed on October 19, 2011).
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10.23
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Amendment No. 4 dated November 7, 2011 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporated herein by reference to Exhibit 10.27 of the Registrant
’s current report on Form 8-K filed on November 10, 2011).
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10.24
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Amendment No. 5 dated March 27, 2012 to a Promissory Note issued in favor of CMS Acquisiti
on, LLC dated September 1, 2010 (incorporated herein by reference to Exhibit 10.28 of the Registrant’s annual report on Form 10-K for the period ended December 31, 2011).
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10.26
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Engagement Agreement between Cleantech Biofuels, Inc. and Fenton Engineering International dated May 30, 2012 (incorporated herein by reference to Exhibit 10.30 of the Registrant
’s current report on Form 8-K filed on June 5, 2012).
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10.27
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Amendment No. 6 dated July 31, 2012 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporated herein by reference to Exhibit 10.29 of the Registrant
’s quarterly report on Form 10-Q filed on August 6, 2012).
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10.28
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Amendment No. 7 dated November 1, 2012 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporated herein by reference to Exhibit 10.30 of the Registrant
’s quarterly report on Form 10-Q filed on November 6, 2012).
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10.29
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Amendment No. 8 dated January 9, 2013 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporated herein by reference to Exhibit 10.31 of the Registrant
’s current report on Form 8-K filed on January 10, 2013).
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10.30
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Amendment No. 9 dated May 8, 2013 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010 (incorporated herein by reference to Exhibit 10.30 of the Registrant
’s quarterly report on Form 10-Q filed on May 13, 2013).
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10.31
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Amended Technology License and Joint Development Agreement, dated November 1, 2013, among CTB Licensing LLC, Biomass North America LLC and Anthony P. Noll (incorporated herein by reference to Exhibit 10.31 of the Registrant
’s quarterly report on Form 10-Q filed on November 12, 2013).
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10.32
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Amendment No. 10 dated March 21, 2014 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010
(incorporated herein by reference to Exhibit 10.32 of the Registrant’s annual report on Form 10-K filed on March 21, 2014).
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10.33
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Memorandum of Understanding between Cleantech Biofuels, Inc., James Avenue LLC, 25 Van Keuren LLC, and Joseph Smentkowski, Inc. dated October 13, 2014.
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10.34
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Amendment No. 11 dated March 17, 2015 to a Promissory Note issued in favor of CMS Acquisition, LLC dated September 1, 2010.
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14
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Code of Ethics (
incorporated herein by reference to Exhibit 14 of the Registrant’s annual report on Form 10-KSB for the period ended December 31, 2007).
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21.1
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List of Subsidiaries.
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31.1**
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Certification of Chief Executive Officer pursuant to Rule 13a-14(a) and Rule
15d-14(a) of the Securities
Exchange Act, as amended
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31.2**
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Certification of principal financial officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended
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32.1**
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Certificate (Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002) of Chief Executive Officer
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32.2**
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Certificate (Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002) of
principal financial officer
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*
Managem
ent contract or compensatory plan or arrangement.
** Filed with this Amendment No. 1 on Form 10K/A
.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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CleanTech Biofuels, Inc.
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(registrant)
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August 2
, 2017
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By:
/s/ Edward P. Hennessey, Jr.
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Edward P. Hennessey, Jr.
Chief Executive Officer
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Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
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August 2
, 2017
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/s/ Edward P. Hennessey, Jr.
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Edward P. Hennessey, Jr., Chairman of the Board
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of Directors and Chief Executive Officer
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(principal executive officer)
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August 2, 2017
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/s/ James Russell
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James Russell, Director
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August 2
, 2017
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/s/ Dr. David Bransby
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David Bransby, Director
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5
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