AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 17,
2008
Registration
No. 333-144386
U.S.
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
SB-2/A
ON
FORM S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
NEW
GENERATION BIOFUELS HOLDINGS, INC.
(
Exact
name of registrant as specified in its charter)
Florida
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26-0067474
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer Identification No.)
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11111
Katy Freeway, Suite 910, Houston, Texas 77079
(713)
973-5720
(Address,
including zip code , and telephone number, including area code, of registrant’s
principal executive offices)
Cary
Claiborne
Chief
Financial Officer
New
Generation Biofuels Holdings, Inc.
11111
Katy Freeway, Suite 910
Houston,
Texas 77079
(Name,
address including zip code , and telephone number, including area code , of
agent for service)
Copy
to:
Steven
M. Kaufman, Esq.
Hogan
& Hartson LLP
555
Thirteenth Street N.W.
Washington,
DC 20004
Tel:
(202) 637-5600
Approximate
date
of
commencement of proposed sale to the public:
As
soon as practicable after the effective date of this
Registration
Statement
and
from time to time thereafter.
If
the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
o
If
any of
the securities being registered on this form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
x
If
this
form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
o
If
this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
o
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
o
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 13b-2 of the Exchange Act. (Check One)
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Large
accelerated filer
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o
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Accelerated
Filer
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o
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Non-accelerated
filer
(Do
not check if a smaller reporting company)
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o
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Smaller
reporting company
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x
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THE
REGISTRANT
HEREBY AMENDS THIS POST-EFFECTIVE AMENDMENT NO. 1 TO THE
REGISTRATION
STATEMENT
ON
SUCH DATE OR DATES AS
MAY
BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION
STATEMENT
SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION
8(a)
OF
THE
SECURITIES
ACT OF 1933
,
AS AMENDED, OR UNTIL THE
REGISTRATION
STATEMENT
SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a),
MAY
DETERMINE.
Explanatory
Note
As
a
result of its recent listing on AMEX the registrant has become eligible for
Form
S-3. This Post-Effective Amendment No. 1 to Form SB-2/A on Form S-3 amends
the
prospectus to one meeting the requirements of Form S-3 including incorporation
by reference. In addition, effective
March
28, 2008 we changed our corporate name to New Generation Biofuels Holdings,
Inc.
The
information in this prospectus is not complete and may be
changed. Our selling stockholders may not sell these securities until
the registration statement filed with the Securities and Exchange Commission
is
effective. This prospectus is not an offer to sell these securities,
and it is not soliciting offers to buy these securities in any state where
the
offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED APRIL 17, 2008
NEW
GENERATION BIOFUELS, INC.
9,349,150
Shares
Common
Stock
This
prospectus relates to the sale of up to 9,349,150 shares of our common stock,
par value $0.001 per share, by the selling stockholders listed in this
prospectus. The shares offered by this prospectus
include:
·
7,867,400
presently outstanding shares of common stock held by non-affiliate selling
stockholders; and
·
1,481,750
shares of common stock issuable upon exercise of warrants to purchase common
stock.
These
shares may be sold by the selling stockholders from time to time on the American
Stock Exchange or on any national securities exchange or automated interdealer
quotation system on which our common stock is then listed or quoted, through
negotiated transactions or otherwise at market prices prevailing at the time
of
sale or at negotiated prices.
The
distribution of the shares by the selling stockholders is not subject to any
underwriting agreement. We will receive none of the proceeds from the sale
of
the shares by the selling stockholders, except upon exercise of the
warrants. We will bear all expenses of registration incurred in
connection with this offering, but the selling stockholders will bear all
selling and other expenses incurred by them.
On
April
15, 2008, there were 18,335,964 shares of our common stock outstanding. Our
common stock became listed on the American Stock Exchange on April 15, 2008
and
is traded under the symbol “GNB”. On April 15, 2008 the closing price of our
common stock on the American Stock Exchange was $6.75 per share. In addition,
effective March 28, 2008, we changed our corporate name to New Generation
Biofuels Holdings, Inc.
We
may
amend or supplement this prospectus from time to time by filing amendments
or
supplements as required. You should read this entire prospectus and any
amendments or supplements carefully before you make your investment
decision.
An
investment in these securities involves a high degree of
risk.
Please
carefully review the section titled “Risk Factors” beginning on page
6.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION
HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The
date of this prospectus is April ___, 2008.
In
considering the acquisition of the common stock described in this prospectus,
you should rely only on the information contained in this
prospectus. We have not authorized anyone to provide you with
information different from that contained in this prospectus. This
prospectus is not an offer to sell, or a solicitation of an offer to buy, shares
of common stock in any jurisdiction where offers and sales would be
unlawful. The information contained in this prospectus is complete
and accurate only as of the date on the front cover of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of the
shares of common stock.
TABLE
OF CONTENTS
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Page
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WHERE
YOU CAN FIND MORE INFORMATION
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3
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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3
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FORWARD-LOOKING
STATEMENTS
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4
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SUMMARY
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5
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RISK
FACTORS
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6
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USE
OF PROCEEDS
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9
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DERTERMINATION
OF OFFERING PRICE
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9
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SELLING
STOCKHOLDERS
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9
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PLAN
OF DISTRIBUTION
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11
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LEGAL
MATTERS
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14
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EXPERTS
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14
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WHERE
YOU CAN FIND MORE INFORMATION
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. Here are ways you can review and obtain copies of this
information:
What
is Available
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Where
to Get it
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Paper
copies of information
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SEC’s
Public Reference Room
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100
F Street, N.E.
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Washington, D.C.
20549
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On-line
information, free of charge
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SEC’s
Internet website at
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www.sec.gov
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Information
about the SEC’s Public Reference Room
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Call
the SEC at 1-800-SEC-0330
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We
have
filed with the SEC a registration statement under the Securities Act of 1933,
as
amended, that registers the distribution of these securities. The registration
statement, including the attached exhibits and schedules, contains additional
relevant information about us and the securities. This prospectus does
not
contain all of the information set forth in the registration statement. You
can
get a copy of the registration statement, at prescribed rates, from the sources
listed above. The registration statement and the documents referred to below
under “Incorporation of Certain Documents by Reference” are also available on
our Internet website,
www.newgenerationbiofuels.com
,
under
“Recent Company Filings.” You can also obtain these documents from us, without
charge (other than exhibits, unless the exhibits are specifically incorporated
by reference), by requesting them in writing or by telephone at the following
address:
New
Generation Biofuels Holdings, Inc.
Attn:
Cary J. Claiborne
11111
Katy Freeway, Suite 910
Houston,
TX 77079
(443)
535-8660
Internet
Website:
www.newgenerationbiofuels.com
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC
allows us to “incorporate by reference” information into this prospectus. This
means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information incorporated
by
reference is considered to be a part of this prospectus, except for any
information that is superseded by other information that is included in or
incorporated by reference into this document.
This
prospectus incorporates by reference the documents listed below that we have
previously filed with the SEC. These documents contain important information
about us:
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our
Annual Report on Form 10-K for the year ended December 31,
2007;
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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, and March 31, 2008;
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a
description of our common stock contained in our Registration Statement
on
Form SB-2, filed with the SEC on October 11, 2007; and
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our
Registration Statement on Form 8-A, filed with the SEC on April
14,
2008.
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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.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
report contains “forward-looking statements” within the meaning of the Private
Securities Litigation Reform Act of 1995 that involve numerous assumptions,
risks and uncertainties, many of which are beyond our control. Our actual
results could differ materially from anticipated results. Important factors
that
may cause actual results to differ from projections include without
limitation:
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our
lack of operating history;
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our
dependence on additional financing;
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our
inability to generate revenues from sales of our biofuel and to establish
production facilities;
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our
inability to enter into acceptable sublicensing agreements with respect
to
our technology or the inability of any sublicensee to successfully
manufacture, market or sell biofuel utilizing our licensed
technology;
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our
inability to compete effectively in the renewable fuels
market;
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governmental
regulation and oversight, including whether or not we are able to
obtain
the governmental approvals necessary to allow our biofuel to be marketed
as “bio-diesel,” or as a new class of biofuel;
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market
acceptance of our biofuel;
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unexpected
costs and operating deficits;
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adverse
results of any material legal proceedings; and
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other
specific risks set forth or incorporated by reference under the heading
“Risk Factors” beginning on page 6 of this
report.
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All
statements, that are not clearly historical in nature regarding our strategy,
future operations, financial position, estimated revenue or losses, projected
costs, prospects, plans and management objectives are forward-looking
statements. When used in this report, the words “will,” “may,” “believe,”
“anticipate,” “intend,” “estimate,” “expect,” “project,” “plan” and similar
expressions generally are intended to identify forward-looking statements,
although not all forward-looking statements contain such identifying words.
All
forward-looking statements are based on information available at the time the
statement was made. We undertake no obligation to update any forward-looking
statements or other information contained in this report as a result of new
information, future events or otherwise. You should not place undue reliance
on
these forward-looking statements. Although we believe that our plans, intentions
and expectations reflected in or suggested by the forward-looking statements
in
this report are reasonable, these plans, intentions or expectations may not
be
achieved.
References
in this prospectus to “New Generation Biofuels Holdings, Inc.,” “we,” “us” and
“our” are to New Generation Biofuels Holdings, Inc.
SUMMARY
You
should read the following summary together with the more detailed information
contained elsewhere in this prospectus, including the section titled “Risk
Factors,” regarding us and the common stock being sold in this
offering.
Our
Business
We
are a
development stage renewable fuels provider. We hold an exclusive license for
North America, Central America and the Caribbean to commercialize proprietary
technology to manufacture alternative biofuels from vegetable oils and animal
fats that we intend to market as a new class of biofuel for power generation,
heavy equipment use, marine use and as a heating fuel. We believe our
proprietary biofuel can provide a cheaper, renewable alternative energy source
with significantly lower emissions than traditional fuels.
In
March
2006, we acquired the rights to our proprietary technology through an exclusive
license agreement with the inventor of the technology, Ferdinando
Petrucci. Under the license agreement, we are required to pay $6.85
million over the next six years. Compared to current methods used in
the production of bio-diesel fuel, we believe that this proprietary technology
is a substantially less complex and therefore less expensive
process.
Our
near-term business strategy involves developing a revenue stream from direct
sales of our biofuel produced at manufacturing plants that we may purchase
or
build, either directly or through joint ventures. To execute this strategy,
we
are pursuing an active test burn program with a number of energy producers
to
validate our biofuel.
In
2007,
we conducted three successful test burns of our biofuel for power generation
applications at an Oakland, California combustion turbine facility operated
by
Dynegy, a wholesale power generation provider. Results indicated that there
were
no shortfalls in engine output and nitrogen oxide emissions were significantly
lower with our biofuel than when firing distillate fuel oil. In September 2007,
we completed our first test burn by initially firing the turbines using
distillate fuel oil, then switching to our biofuel. In November 2007, we
completed the second test burn that focused on the capabilities of our hybrid
formulation, which is designed for customer applications where a higher flash
point product is required. In December 2007, we completed the third test burn,
where we used a formulation made from recycled vegetable oil. As a result of
these successful tests, both parties have agreed to negotiate in good faith
toward a mutually agreeable purchase agreement for our biofuel although the
agreement does not specify timing or quantity.
In
December 2007, we entered into a test burn agreement with Mirant Energy Trading
to evaluate our proprietary biofuel in power generation applications. The test
burn agreement requires us to supply our biofuel for a test program that will
be
performed by Mirant. The test program will include the evaluation of both
technical and environmental performance characteristics of our biofuel. The
test
burn agreement also requires us to pay 50% of all costs of environmental
emissions testing conducted in connection with the test program, up to a maximum
of $150,000. In February 2008, we conducted our first of three test burns at
one
of Mirant’s power generation facilities in Maryland. If the testing is
successful, both parties intend to negotiate a mutually agreeable purchase
agreement for our biofuel.
In
November 2007, we entered into a vehicle test program with the City of Orlando,
Florida to demonstrate the capabilities of our proprietary biofuel in fleet
vehicle applications. The test program to be carried out over several months,
will be conducted using a vehicle in the City’s truck fleet and will include a
comprehensive series of performance and tailpipe emissions tests.
In
March
2008, we entered into a test burn agreement with FirstEnergy Corporation to
evaluate our proprietary biofuel technology in power generation
applications. Under the agreement, we and FirstEnergy contemplate conducting
three full and partial load test burns that may consume approximately 30,000
gallons of our biofuel at FirstEnergy’s combustion turbine power plant in
Lorain, Ohio. The tests will evaluate both the technical and environmental
performance characteristics of the our biofuel. We will supply and deliver
the
biofuel to the testing site and are obligated to pay 50% of all costs of
environmental emissions testing conducted in connection with the test program,
up to a maximum of $15,000. FirstEnergy is entitled to all revenue arising
from
sales of electricity generated during the testing. If the testing is successful,
both parties intend to negotiate a mutually agreeable purchase agreement for
our
biofuel.
In
August
2007, we placed into service our first biofuel production plant, a 3 million
gallon per year pilot facility, jointly developed with Twin Rivers Technologies
and co-located at Twin Rivers’ facility in Cincinnati, Ohio. We are leasing the
equipment used at the plant but own all rights to the fuel produced at the
facility. The facility will be used initially to manufacture fuel for our
application testing program and then later for early commercial sales until
a
full-scale production plant is completed. In March 2007, we entered into a
letter of intent with Twin Rivers Technologies to potentially develop a
production plant at Twin Rivers’ facility located in Quincy, Massachusetts. The
letter of intent contemplates a period during which we will negotiate with
Twin Rivers regarding definitive agreements covering the siting, construction,
operation and management of our proposed initial 25 million gallon per year
production facility and covering the supply of vegetable oils and other
commodity feedstocks and the off take of finished biofuel by Twin Rivers from
the facility. We began discussions with Twin Rivers in the second half of
2007.
We
also
have commenced the process of procuring raw materials for production of our
biofuel but have not made any significant commitments or procurements at this
point. As a second potential revenue stream, our business plan contemplates
collecting royalties through sublicensing our proprietary technology where
it is
more efficient for manufacturers to produce our biofuel at their own plants
rather than requiring production at our propose facilities. We also are actively
pursuing our eligibility and qualification for tax credits and other government
incentives to strengthen the competitive position of our biofuel.
The
operation and development of our business will require substantial additional
capital during 2008 to fund, among other things, our operations, payments due
under our exclusive license, the acquisition or development of manufacturing
plants, research and development and the financing of future acquisitions and
investments.
As
a
development stage company, our business also involves a high degree of risk,
as
described in more detail in “Risk Factors” beginning on page 6,
including:
·
our
early
stage and lack of revenues,
·
our
need
for significant additional capital to fund our operations, and
·
the
lack
of current market acceptance of our proprietary technology and
product.
About
this Offering
This
prospectus relates to the offering of up to 9,349,150 shares of our common
stock
by the non-affiliate selling stockholders listed in this prospectus. The
shares offered by this prospectus include:
·
7,867,400
presently outstanding shares of common stock held by non-affiliate selling
stockholders; and
·
1,481,750
shares
of
common stock issuable upon the exercise of warrants to purchase common
stock.
We
issued
these shares and warrants in connection with the reverse merger and a private
placement completed by H2Diesel shortly before the closing of the reverse
merger. The number of shares being offered by this prospectus, including
shares issuable upon the exercise of warrants, represents approximately
51%
of
our
total outstanding common stock, as of April 15, 2008.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. You
should carefully consider the following material risks and those incorporated
by
reference from our Annual Report on Form 10-K for the year ended December 31,
2007, together with the other information contained in this prospectus, before
you decide to buy our common stock. If any of the following risks
actually occur, our business, results of operations and financial condition
would likely suffer. In these circumstances, the market price of our
common stock could decline, and you may lose all or part of your
investment.
Risks
Related to Our Common Stock
Our
common stock may continue to be subject to price fluctuations and illiquidity
because our shares may continue to trade in small
volumes.
Although
a trading market for our common stock exists, the trading volume has
historically been light, and an active trading market for our common stock
may
never develop. There currently is no significant analyst coverage of our
business. As a result of the limited trading market for our common stock and
the
lack of analyst coverage, the market price for our shares may continue to
fluctuate significantly and will likely fluctuate more than the stock market
as
a whole. Without an active public trading market or broader public ownership,
shares of our common stock are likely to be less liquid than the stock of most
public companies, and any of our shareholders who attempt to sell their shares
in any significant volumes may not be able to do so at all, or without
depressing the publicly quoted bid prices for their shares.
The
market price of our common stock is likely to be volatile based upon
developments in our business or the industry.
The
market price of our common stock is likely to be volatile as a result of many
factors including, but not limited to:
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our
announcement of developments, whether positive or negative, with
respect
to our business, including the viability of our biofuel, new or changes
in
strategic relationships, and our ability or failure to meet business
milestones;
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developments
concerning intellectual property rights and regulatory
approvals;
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the
announcement of new products or product enhancements by our
competitors;
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changes
in the market for alternative fuels and in commodities used to produce
them;
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fluctuations
in the availability of capital to companies in the early stages;
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changes
in the social, political and economic climate in the regions in which
we
operate; and
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the
impact of sales and trading activity with respect to our common stock
in
the market.
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These
and
other factors are largely beyond our control, and the impact of these risks,
individually or in the aggregate, may result in material changes to the market
price of our common stock.
We
may not be able to attract the attention of brokerage firms for research and
support.
Additional
risks may exist because we became public without an underwritten offering.
Securities analysts of brokerage firms may not provide us with coverage because
there is no incentive to brokerage firms to recommend the purchase of our common
stock. We cannot assure you that brokerage firms will want to conduct any
secondary offerings on our behalf in the future.
A
significant number of our shares are eligible for sale, and their sale could
depress the market price of our common stock.
Sales
of
a significant number of shares of our common stock in the public market could
harm the market price of our common stock. In 2007, we registered a
total of 11,273,050 shares of our common stock held by non-affiliate selling
shareholders, including shares issuable upon conversion or exercise of rights
to
purchase that are not currently outstanding, which shares are now eligible
for
trading in the public market. In addition, we may be obligated to register
shares held by Xethanol as early as April 2008 to facilitate the spinoff to
Xethanol’s stockholders of the shares of our common stock issued to Xethanol in
the reverse merger. Such registration would make 5,670,000 additional shares
of
our common stock eligible for trading in the public market. Some or all of
these
shares of common stock may be offered from time to time in the open market
pursuant to a registration statement or Rule 144, and these sales may depress
the market for the shares of our common stock. In general, a person who has
held
restricted shares for the requisite holding period, upon compliance with Rule
144 procedures, may sell shares into the market.
Our
common stock may be considered “a penny stock” and may be difficult to
sell.
The
SEC
has adopted regulations which generally define “penny stock” to be an equity
security that has a market price of less than $5.00 per share or an exercise
price of less than $5.00 per share, subject to specific exemptions. To the
extent the market price of our publicly traded common stock is less than $5.00
per share, it may be designated as a “penny stock” according to SEC rules. This
designation requires any broker or dealer selling these securities to disclose
certain information concerning the transaction, obtain a written agreement
from
the purchaser and determine that the purchaser is reasonably suitable to
purchase the securities. These rules may restrict the ability of brokers or
dealers to sell our common stock and may affect the ability of investors to
sell
their shares.
Reverse
mergers may be disfavored by the SEC, and we may encounter difficulties or
delays in registering certain securities in the future or achieving a listing
on
a national securities market.
Historically,
the SEC and stock exchanges have not generally favored transactions in which
a
privately-held company merges into a largely inactive company with publicly
traded stock, and the SEC has adopted and may continue to adopt rules dealing
with securities issued on a private basis by a “shell” or inactive public
company prior to the reverse merger. Also, NASDAQ and other national securities
markets may scrutinize carefully the shares issued by the shell public company
or facets of the reverse merger transaction in connection with any application
we may make to list our shares in the future, which could result in difficulties
or delays in achieving listing on any national securities market.
USE
OF PROCEEDS
This
prospectus relates to shares of our common stock that may be offered and sold
from time to time by the selling stockholders who will receive all of the
proceeds from the sale of the shares. We will not receive any proceeds from
the
sale of shares of common stock in this offering except upon the exercise of
outstanding warrants. We could receive up to $3,129,500
from
the
cash exercise price upon exercise of warrants held by selling stockholders.
We
expect to use the proceeds received from the exercise of the warrants, if any,
for working capital and general corporate purposes. We will bear all expenses
of
registration incurred in connection with this offering, but the selling
stockholders will bear all commissions, selling and other expenses to
underwriters, agents, brokers and dealers. We estimate that our expenses in
connection with the filing of the registration statement of which this
prospectus is a part will be approximately $38,400.
DETERMINATION
OF OFFERING PRICE
This
offering is being made solely to allow the selling stockholders to offer and
sell shares of our common stock to the public. The selling stockholders may
offer for resale some or all of their shares at the time and price that they
choose. On any given day, the price per share is likely to be based on the
bid
price for our common stock, as quoted on the American Stock Exchange on the
date
of sale, unless shares are sold in private transactions. Consequently, we cannot
currently make a determination of the price at which shares offered for resale
pursuant to this prospectus may be sold.
SELLING
STOCKHOLDERS
Selling
Stockholder Table
The
following table sets forth:
|
·
|
the
name of the selling stockholders,
|
|
·
|
the
number of shares of common stock beneficially owned by the selling
stockholders as of April
15, 2008,
|
|
·
|
the
maximum number of shares of common stock that may be offered for
the
account of the selling stockholders under this prospectus,
and
|
|
·
|
the
amount and percentage of common stock that would be owned by the
selling
stockholders after completion of the offering, assuming a sale of
all of
the common stock that may be offered by this
prospectus.
|
Beneficial
ownership is determined under the rules of the SEC. The number of
shares beneficially owned by a person includes shares of common stock underlying
warrants, stock options and other derivative securities to acquire our common
stock held by that person that are currently exercisable or convertible within
60 days after April 15, 2008. The shares issuable under these securities are
treated as outstanding for computing the percentage ownership of the person
holding these securities, but are not treated as outstanding for the purposes
of
computing the percentage ownership of any other person.
Name of Selling Security Holder
|
|
Shares
Beneficially
Owned
Represented by
Common Stock
and Warrants
Before the
Offering
(1)
|
|
Shares Offered
Hereby
|
|
Shares
Beneficially
Owned After
the Offering
|
|
Percentage of
Outstanding
Shares
Beneficially
Owned After the
Offering
|
|
Pacific
Trust
|
|
|
280,750
|
|
|
280,750
|
|
|
0
|
|
|
**
|
|
The
River Trust
|
|
|
990,000
|
|
|
990,000
|
|
|
0
|
|
|
**
|
|
The
Aspen Trust
|
|
|
300,000
|
|
|
300,000
|
|
|
0
|
|
|
**
|
|
Mallis
Family Limited Partnership
|
|
|
1,285,335
|
|
|
1,285,335
|
|
|
0
|
|
|
**
|
|
David
Price
|
|
|
350,000
|
|
|
350,000
|
|
|
0
|
|
|
**
|
|
John
Roth
|
|
|
350,000
|
|
|
350,000
|
|
|
0
|
|
|
**
|
|
Dr.
Harold Rosen
|
|
|
75,000
|
|
|
75,000
|
|
|
0
|
|
|
*
|
|
Martin
Rosen
|
|
|
75,000
|
|
|
75,000
|
|
|
0
|
|
|
*
|
|
Stanford
Miller
|
|
|
156,000
|
|
|
156,000
|
|
|
0
|
|
|
**
|
|
David
Remland
|
|
|
126,000
|
|
|
69,500
|
|
|
0
|
|
|
**
|
|
Elliot
J. Brody Revocable Trust
|
|
|
17,500
|
|
|
17,500
|
|
|
0
|
|
|
*
|
|
Gary
Kerner
|
|
|
17,500
|
|
|
17,500
|
|
|
0
|
|
|
*
|
|
Howard
Cohen
|
|
|
15,000
|
|
|
15,000
|
|
|
0
|
|
|
*
|
|
David
Leven
|
|
|
15,000
|
|
|
15,000
|
|
|
0
|
|
|
*
|
|
Michael
Klebanoff
|
|
|
10,000
|
|
|
10,000
|
|
|
0
|
|
|
*
|
|
Glenn
Kupferman
|
|
|
10,000
|
|
|
10,000
|
|
|
0
|
|
|
*
|
|
Dr.
Steven Glickman
|
|
|
63,000
|
|
|
63,000
|
|
|
0
|
|
|
*
|
|
Dr.
Ira Wendroff
|
|
|
10,000
|
|
|
10,000
|
|
|
0
|
|
|
*
|
|
Jerome
Levitt
|
|
|
5,000
|
|
|
5,000
|
|
|
0
|
|
|
*
|
|
Craig
Faux Sr.
|
|
|
5,000
|
|
|
5,000
|
|
|
0
|
|
|
*
|
|
Elliot
Sklar
|
|
|
5,000
|
|
|
5,000
|
|
|
0
|
|
|
*
|
|
Lelend
Morris
|
|
|
2,500
|
|
|
2,500
|
|
|
0
|
|
|
*
|
|
Aaron
Rappaport
|
|
|
2,500
|
|
|
2,500
|
|
|
0
|
|
|
*
|
|
Joseph
Fasciglione
|
|
|
10,000
|
|
|
10,000
|
|
|
0
|
|
|
*
|
|
Michael
McKee
|
|
|
5,000
|
|
|
5,000
|
|
|
0
|
|
|
*
|
|
Marianne
Gardner
|
|
|
5,000
|
|
|
5,000
|
|
|
0
|
|
|
*
|
|
David
and Debra Kinser
|
|
|
10,000
|
|
|
2,000
|
|
|
0
|
|
|
*
|
|
John
Schwartz
|
|
|
10,000
|
|
|
10,000
|
|
|
0
|
|
|
*
|
|
Steven
Sciaretta
|
|
|
10,000
|
|
|
10,000
|
|
|
0
|
|
|
*
|
|
Andrew
Friis
|
|
|
20,000
|
|
|
20,000
|
|
|
0
|
|
|
*
|
|
Giancarlo
LoFiego
|
|
|
357,500
|
|
|
357,500
|
|
|
0
|
|
|
**
|
|
Grandview
Consultants
|
|
|
415,000
|
|
|
415,000
|
|
|
0
|
|
|
**
|
|
Ferdinand
Petrucci
|
|
|
893,750
|
|
|
893,750
|
|
|
0
|
|
|
**
|
|
Retina
Vitreous Consultants of West Florida-PL 401K Profit Sharing
Plan
|
|
|
281,065
|
|
|
281,065
|
|
|
0
|
|
|
**
|
|
Clifford
W. Henry Rollover IRA
|
|
|
6,000
|
|
|
6,000
|
|
|
0
|
|
|
*
|
|
Cranshire
Capital, L.P.
|
|
|
265,000
|
|
|
75,000
|
|
|
0
|
|
|
**
|
|
Cliff
Henry
|
|
|
100,000
|
|
|
100,000
|
|
|
0
|
|
|
**
|
|
Donald
G. Drapkin
|
|
|
265,000
|
|
|
165,000
|
|
|
0
|
|
|
**
|
|
Ira
Wendroff IRA
|
|
|
53,000
|
|
|
53,000
|
|
|
0
|
|
|
*
|
|
Iroquis
Master Fund Ltd.
|
|
|
106,000
|
|
|
30,000
|
|
|
0
|
|
|
**
|
|
Rockmore
Investment Master Fund Ltd
|
|
|
265,000
|
|
|
73,313
|
|
|
0
|
|
|
**
|
|
Dan
Moogan
|
|
|
10,000
|
|
|
10,000
|
|
|
0
|
|
|
*
|
|
Worthington
Growth L.P.
|
|
|
212,000
|
|
|
212,000
|
|
|
0
|
|
|
**
|
|
Gimmel
Partners LP
|
|
|
100,000
|
|
|
100,000
|
|
|
0
|
|
|
**
|
|
James
Lewis Money Purchase Pension Plan
|
|
|
79,500
|
|
|
79,500
|
|
|
0
|
|
|
*
|
|
Lisa
Clyde Nielsen and Ian Nielsen
|
|
|
26,500
|
|
|
26,500
|
|
|
0
|
|
|
*
|
|
Selma
Rosen
|
|
|
106,000
|
|
|
106,000
|
|
|
0
|
|
|
**
|
|
Michael
R. Jacks
|
|
|
107,240
|
|
|
107,240
|
|
|
0
|
|
|
**
|
|
William
Corbett
|
|
|
107,240
|
|
|
107,240
|
|
|
0
|
|
|
**
|
|
Empire
Financial Group
|
|
|
91,920
|
|
|
41,920
|
|
|
0
|
|
|
*
|
|
Warrant
Strategies Fund LLC
|
|
|
100,000
|
|
|
100,000
|
|
|
0
|
|
|
**
|
|
JMB
LLC
|
|
|
50,000
|
|
|
50,000
|
|
|
0
|
|
|
*
|
|
Bruce
Horowitz
|
|
|
100,000
|
|
|
100,000
|
|
|
0
|
|
|
**
|
|
Lee
Osman
|
|
|
25,100
|
|
|
25,100
|
|
|
0
|
|
|
*
|
|
Virchaux
& Partners
|
|
|
110,250
|
|
|
110,250
|
|
|
0
|
|
|
**
|
|
Wolf
Axelrod Weinberger
|
|
|
200,000
|
|
|
200,000
|
|
|
0
|
|
|
**
|
|
Crestview
Capital
|
|
|
100,000
|
|
|
100,000
|
|
|
0
|
|
|
**
|
|
TOTAL
|
|
|
9,349,150
|
|
|
9,349,150
|
|
|
|
|
|
|
|
*
Less
than 1 percent.
**
Less
than 5 percent
(1)
|
This
prospectus covers 7,867,400 shares of common stock and 1,481,750
shares of
common stock underlying stock purchase
warrants.
|
PLAN
OF DISTRIBUTION
Distribution
by Selling Stockholders
This
prospectus relates to shares of our common stock held by the selling
stockholders. Each selling stockholder, the “selling stockholders,” of the
common stock and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their shares of common stock through
the American Stock Exchange, any market or trading facility on which the shares
are traded or in private transactions. These sales may be at fixed or
negotiated prices. A selling stockholder may use any one or more of the
following methods when selling shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers,
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction,
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account,
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange,
|
|
·
|
privately
negotiated transactions,
|
|
·
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part,
|
|
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number
of such
shares at a stipulated price per
share,
|
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise,
|
|
·
|
a
combination of any such methods of sale,
or
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended, if available, rather than under this
prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this prospectus, in the case of
an
agency transaction not in excess of a customary brokerage commission in
compliance with NASDR Rule 2440; and in the case of a principal transaction
a
markup or markdown in compliance with NASDR IM-2440.
In
connection with the sale of the common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The
selling stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares may be considered “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
Because
selling stockholders may be considered “underwriters” within the meaning of the
Securities Act, they will be subject to the prospectus delivery requirements
of
the Securities Act including Rule 172 thereunder. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting in
connection with the proposed sale of the shares by the selling
stockholders.
We
agreed
to keep this prospectus effective until 13 months after the date of closing
of
the May 2007 Private Placement, unless all securities registered under the
registration statement have been sold or are otherwise able to be sold pursuant
to Rule 144 under the Securities Act, without regard to volume limitations,
provided we comply with our reporting obligations. The shares will be
sold only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the shares
may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934,
any
person engaged in the distribution of the shares may not simultaneously engage
in market making activities with respect to the common stock for the applicable
restricted period, as defined in Regulation M, prior to the commencement of
the
distribution. In addition, the selling stockholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases
and
sales of shares of the common stock by the selling stockholders or any other
person. We will make copies of this prospectus available to the
selling stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
We
are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares. We have agreed to indemnify the selling
stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
The
selling stockholders may offer all of the shares of common stock for
sale. Further, because it is possible that a significant number of
shares could be sold at the same time under this prospectus, such sales, or
that
possibility, may have a depressive effect on the market price of our common
stock. We cannot assure you, however, that any of the selling
stockholders will sell any or all of the shares of common stock they may
offer.
LEGAL
MATTERS
The
validity of the shares of common stock offered hereby have been passed upon
by
Hogan & Hartson LLP, Washington, District of Columbia.
EXPERTS
The
consolidated financial statements as of December 31, 2007 and 2006 and the
related consolidated statements of operations, stockholders’ equity, and cash
flows for the year ended December 31, 2007 and for the period from February
28,
2006 (inception) to December 31, 2006 incorporated in this prospectus by
reference from our Annual Report on Form 10-K for the year ended
December 31, 2007 and 2006 have been audited by Imowitz Koenig & Co.,
LLP, an independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference, and has been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
NEW
GENERATION BIOFUELS HOLDINGS, INC.
|
Common
Stock
|
|
|
|
|
|
|
|
|
|
|
|
Prospectus
|
|
|
|
|
|
|
|
|
|
|
|
April
_____, 2008
|
|
|
|
|
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
Registration
Fees
|
|
$
|
400
|
|
Transfer
Agent Fees
|
|
|
1,000
|
|
Legal
Fees and Expenses
|
|
|
20,000
|
|
Printing
and Engraving Expenses
|
|
|
2,000
|
|
Accounting
Fees and Expenses
|
|
|
10,000
|
|
Miscellaneous
|
|
|
5,000
|
|
Total
|
|
$
|
38,400
|
|
Item
15. Indemnification of Directors and Officers.
Section
607.0850 of the Florida Business Corporation Act provides for the
indemnification of officers, directors, employees, and agents. A corporation
shall have power to indemnify any person who was or is a party to any proceeding
(other than an action by, or in the right of, the corporation), by reason of
the
fact that he or she is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint
venture, trust, or other enterprise against liability incurred in connection
with such proceeding, including any appeal thereof, if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed
to,
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any proceeding by judgment, order, settlement,
or
conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and
in a
manner which he or she reasonably believed to be in, or not opposed to, the
best
interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
We
have
agreed to indemnify each of our directors and certain officers against certain
liabilities, including liabilities under the Securities Act of 1933, as amended
(the “Securities Act”). Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the provisions described above, or otherwise, we have been
advised that in the opinion of the U.S. Securities and Exchange Commission
such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than our payment of expenses incurred or paid
by
our director, officer or controlling person in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will, unless
in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Item 16.
Exhibits.
The
exhibits to this Registration Statement are listed in the Index to Exhibits
included elsewhere in this Registration Statement.
Item 17.
Undertakings.
(a) The
undersigned registrant hereby undertakes:
|
(1)
|
To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration
statement:
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the
effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent
a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease
in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from
the low or high end of the estimated maximum offering range may
be
reflected in the form of prospectus filed with the Commission pursuant
to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement;
|
provided,
however
,
that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the
registration statements is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant
to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in
a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
|
(2)
|
|
That,
for the purpose of determining any liability under the Securities
Act of
1933, each such post-effective amendment shall be deemed to be a
new
registration statement relating to the securities offered therein,
and the
offering of such securities at that time shall be deemed to be the
initial
bona fide offering thereof.
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(3)
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To
remove from registration by means of a post-effective amendment any
of the
securities being registered which remain unsold at the termination
of the
offering.
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(b) The
undersigned registrant hereby undertakes that, for the purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall
be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be
the initial bona fide offering thereof.
(c)
The
undersigned registrant hereby undertakes to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or given,
the
latest annual report to security holders that is incorporated by reference
in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to
be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d)
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to the registration statement to be signed on its behalf by
the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on April 17, 2008.
NEW
GENERATION BIOFUELS HOLDINGS,
INC.
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By:
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/s/
David A. Gillespie
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David
A. Gillespie
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President and Chief Executive Officer
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(principal
executive officer)
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Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective Amendment
No. 1 to the registration statement has been signed by the following persons
in
the capacities and on the dates indicated.
Name
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Title
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Date
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/s/
David A. Gillespie
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President,
Chief Executive Officer and
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April
17, 2008
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David
A. Gillespie
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Director
(principal executive officer)
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/s/
Cary J. Claiborne
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Chief
Financial Officer (principal financial officer)
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April
17, 2008
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Cary
J. Claiborne
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/s/
Lee S. Rosen*
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Chairman
of the Board
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April
17, 2008
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Lee
S. Rosen
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/s/
Phillip E. Pearce*
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Director
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April
17, 2008
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Phillip
E. Pearce
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/s/
John E. Mack*
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Director
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April
17, 2008
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John
E. Mack
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/s/
James Robert Sheppard, Jr.*
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Director
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April
17, 2008
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James
Robert Sheppard, Jr.
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/s/
Steven F. Gilliland*
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Director
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April
17, 2008
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Steven
F. Gilliland
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*
By:
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/s/
David A. Gillespie
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David
A. Gillespie
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Attorney-in-Fact
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EXHIBIT
INDEX
Exhibit No.
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Exhibit
Description
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5.1†
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Opinion
of Hogan & Hartson LLP (filed as Exhibit 5.1 to Registration Statement
on Form SB-2 filed with the SEC on October 11, 2007).
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23.1*
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Consent
of Imowitz Koenig & Co., LLP.
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23.2†
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Consent
of Hogan & Hartson (included in Exhibit 5.1 and filed with the
Registration Statement on Form SB-2 filed with the SEC on October
11,
2007).
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24.1†
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Power
of Attorney (included on the signature page of the Registration
Statement
on Form SB-2 filed with the SEC on October 11,
2007).
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*
Filed
herewith.
†
Previously filed.
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