As
filed with the Securities and Exchange Commission on June 2,
2010
Registration
No. 333-164857
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
Pre-Effective Amendment No. 2
to
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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5850
Waterloo Road, Suite 140
Columbia,
Maryland 21045
(410)
480-8084
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Cary
J. Claiborne
President,
Chief Executive Officer, and Secretary
New
Generation Biofuels Holdings, Inc.
5850
Waterloo Road, Suite 140
Columbia,
Maryland 21045
(410)
480-8084
(Name,
address including zip code, and telephone number, including area code, of agent
for service)
Copy
to:
Steven
M. Kaufman, Esq.
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 a
nd 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.
¨
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.
¨
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.
¨
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.
¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check One)
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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CALCULATION
OF REGISTRATION FEE
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securities
to
be
registered
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Common
Stock, par value $0.001 per share (2)
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3,781,716
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$
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0.71
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$
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2,685,018
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$
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191
.00
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Total
Registration Fee
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$
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191
.00
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(1)
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Pursuant
to Rule 416 under the Securities Act, this registration statement shall
also cover any additional shares of common stock that shall become
issuable by reason of any stock dividend, stock split, recapitalization,
or other similar transaction effected without the receipt of consideration
that results in an increase in the number of the outstanding shares of
common stock.
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(2)
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Represents
presently outstanding shares of common stock held by the selling
shareholders and shares issuable to the selling shareholders upon exercise
of warrants to purchase additional shares, as described in the
offering documents.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933, as amended, based upon the
average of the high and low prices as reported on the NASDAQ Capital
Market on February 8, 2010.
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The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a),
may determine.
The
information in this prospectus is not complete and may be
changed. Our selling shareholders may not sell these securities until
the registration statement filed with the Securities and Exchange Commission is
declared 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 June 2, 2010
PROSPECTUS
NEW
GENERATION BIOFUELS HOLDINGS, INC.
3,781,716
Common
Stock
This prospectus relates to the sale of
up to 3,781,716 shares of our common stock, par value $0.001 per share, by the
non-affiliate selling shareholders identified in this prospectus. The
shares offered by this prospectus relate to securities issued in a private
placement completed in February 2010.
The
registration of shares covered by this prospectus does not necessarily mean that
the selling shareholders will offer or sell any of the shares. The
timing and amount of sale are within the sole discretion of the selling
shareholders. These shares may be sold by the selling shareholders from time to
time on the NASDAQ Capital Market 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 shareholders is not subject to any
underwriting agreement. We will receive none of the proceeds from the
sale of the shares by the selling shareholders. We will bear all expenses of
registration incurred in connection with this offering, but the selling
shareholders will bear all selling and other expenses incurred by
them.
Our
common stock is traded on the NASDAQ Capital Market under the symbol “NGBF.”
On May 28, 2010, the closing sale price of our common stock on the NASDAQ
Capital Market was $0.63 per share. None of our other securities are
currently publicly traded.
We may
amend or supplement this prospectus from time to time by filing amendments or
supplements as required. You should read this entire prospectus and any
amendments or supplements carefully before you make your investment
decision.
Investing
in these securities involves a high degree of risk. Please carefully review the
section entitled “Risk Factors” beginning on page 5 of this prospectus and
the risk factors that are incorporated by reference in this prospectus from our
Securities and Exchange Commission filings.
The
shares have not been registered under the securities laws of any state or other
jurisdiction as of the date of this prospectus. Brokers or dealers should
confirm the existence of an exemption from registration or effectuate such
registration in connection with any offer and/or sale of the
shares.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy or this prospectus. Any representation to the contrary is a criminal
offense.
In
considering the acquisition of the common stock described in this prospectus,
you should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. The information contained in this prospectus is
complete and accurate only as of the date on the front cover of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of the
shares of common stock.
The
date of this prospectus is June __, 2010.
TABLE
OF CONTENTS
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Page
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ABOUT
THIS PROSPECTUS
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1
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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1
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SUMMARY
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2
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RISK
FACTORS
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5
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USE
OF PROCEEDS
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6
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DETERMINATION
OF OFFERING PRICE
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6
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SELLING
SHAREHOLDERS
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7
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PLAN
OF DISTRIBUTION
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11
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LEGAL
MATTERS
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13
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EXPERTS
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13
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WHERE
YOU CAN FIND MORE INFORMATION
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13
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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ABOUT
THIS PROSPECTUS
We have
filed with the Securities and Exchange Commission (the “SEC”) a registration
statement on Form S-3, of which this prospectus is a part, under the Securities
Act of 1933, as amended (the “Securities Act”), with respect to the offered
shares. This prospectus does not contain all of the information set forth in the
registration statement, portions of which we have omitted as permitted by the
rules and regulations of the SEC. Statements contained in this prospectus as to
the contents of any contract or other document are not necessarily complete. You
should refer to the copy of each contract or document filed as an exhibit to or
incorporated by reference into the registration statement for a complete
description.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Any
statements in this 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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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;
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our
ability to protect our technology through intellectual property
rights;
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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” of this prospectus.
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Further
information on the factors and risks that could affect our business, financial
condition and results of operations, are set forth in this prospectus 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 prospectus 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.
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 our common stock before making an investment
decision..
Our
Business
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 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.
The operation and development of our
business will require substantial additional capital to fund our operations,
payments due under our exclusive technology license, the development or
expansion of our production plants, research and development, and other
initiatives.
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 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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Significant
developments regarding our company include the following:
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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 appointed John E. Mack, our
current audit committee chairman, as non-executive Chairman of the Board,
appointed David H. Goebel, our Chief Operating Officer, as a director,
accepted the resignation of Lee S. Rosen as Chairman and as director and
approved and executed 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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In
March 2010, we received the permit to construct approval from the State of
Maryland to expand our Baltimore facility to 25 million
gallons.
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On
March 12, 2010, we executed a non-binding Memorandum of Understanding, or
MOU, with Regent Trend Investment Ltd (soon to be re-named Milestone
Biofuels Limited, or Milestone), a potential strategic partner from China,
under which 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 a due diligence period of up to 75 days 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 is
no assurance that definitive agreements will be signed or that the
transaction will close.
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In February 2010, we
entered into an agreement with Ferdinando Petrucci, the inventor of our
proprietary technology, to issue 1,100,000 shares of common stock and
$120,000 in cash in lieu of the $1 million license payment payable in two
equal installments in February and March 2010 to help conserve cash and
strengthen our
liquidity.
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In
February 2010, we closed a private placement of 1,890,858 shares of common
stock and warrants to purchase 1,890,858 shares of common stock for total
gross proceeds of approximately $1.3
million.
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In January 2010,
Baltimore City Schools named us in their annual heating fuel request for
proposal. This request for proposal by the Baltimore City Schools is in
conjunction with a proposed 1 year contract with the City of Baltimore. We
previously completed a successful test program with the City of Baltimore
and reached an agreement to proceed with a longer contract to include the
Baltimore City
Schools.
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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
. The
information on our website or any other website is not incorporated by reference
into this prospectus or any accompanying prospectus supplement.
About
this Offering
This prospectus relates to the
offering of up to 3,781,716 shares of our common stock by the non-affiliate
selling shareholders listed in this prospectus, representing, as of May 28,
2010, approximately 10.5% of our total outstanding common stock and 14.0% of our
public float. The shares offered by this prospectus relate to
securities issued in a private placement in February 2010,
including:
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1,890,858
presently outstanding shares of common stock,
and
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1,890,858
shares of common stock issuable upon exercise of
warrants.
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February
2010 Private Placement
On February 2, 2010, we completed a
private placement of common stock and warrants, raising $1.3 million in gross
proceeds and approximately $1.2 million in net proceeds after deducting finders’
fees.
We
issued 1,890,858 shares of common stock and warrants to
purchase 1,890,858 shares of common stock to a group of investors. We sold
the shares and warrants in units at a price of $0.69 per unit, with each unit
consisting of one share of common stock and a warrant to purchase one share
of common stock at an exercise price of $0.90 per share. The warrants have
a five year term from the date of issuance, will not be exercisable prior to six
months after issuance and will include provisions providing for adjustments to
the number of shares exercisable thereunder upon stock dividends, stock splits
and similar events. We also do not intend that the warrants will trade on any
exchange or be listed for quotation on any market.
Each investor who subscribed for units
will have an option to purchase additional units consisting of shares of common
stock and warrants during an exercise period ending 30 days after a registration
statement registering shares issued in the offering is declared effective by the
Securities and Exchange Commission. The option warrants will have the same
exercise price, terms and conditions as the other warrants issued in the
offering. Subject to NASDAQ listing approval and determination that shareholder
approval is not required for the issuance of option units, the option will
permit purchases of up to the number of units initially purchased in the
offering.
The
offering also included certain antidilution provisions for the benefit of
investors. If at any time prior to six (6) months after the registration
statement is declared effective we issue additional equity securities in a
“financing transaction” (as defined in the transaction documents) with a
purchase price less than the unit price or issue convertible securities with a
purchase price less than the unit price, we will be obligated to issue
additional shares of common stock to investors in this offering so that the
aggregate number of shares received by the investor is equal to the number of
shares of common stock that the investor would have received if the same dollar
amount had been invested at the purchase price of the additional equity
securities. There are no anti-dilution provisions in the warrants. The total
number of shares issued to all investors in the offering and pursuant to
anti-dilution provisions will not exceed the maximum number of shares that may
be issued without obtaining shareholder approval under listing rules of the
NASDAQ Capital Market.
In
connection with the offering, we agreed to register the resale of the shares
issued in the offering or upon exercise of the option, but excluding shares
underlying warrants. We filed the registration statement as required within
10 days of closing.
We are
now registering for resale the shares issued in the offering or upon the
exercise of the warrants, rather than the shares issuable upon exercise of the
option.
We are obligated to maintain the effectiveness of the
registration statement indefinitely, until the shares have been disposed of in
accordance with the registration statement, the shares have been distributed to
the public or could be sold by the investor pursuant to Rule 144 under the
Securities Act, or the shares have ceased to be outstanding.
For more
information about the February 2010 private placement, see our Current Report on
Form 8-K, filed February 3, 2010.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. You should
carefully consider the risks incorporated by reference from 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 in this prospectus,
before you decide to invest in our securities. These risks could result in
impairment of our financial condition and results of operations, in which event
the value of our securities could decline, and you may lose all or part of your
investment.
USE
OF PROCEEDS
This
prospectus relates to shares of our common stock that may be offered and sold
from time to time by the selling shareholders 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. We will bear all expenses of
registration incurred in connection with this offering, but the selling
shareholders will bear all commissions, selling and other expenses to
underwriters, agents, brokers and dealers.
DETERMINATION
OF OFFERING PRICE
This offering is being made solely to
allow the selling shareholders to offer and sell shares of our common stock to
the public. The selling shareholders may offer for resale some or all of their
shares at the time and price that they choose. On any given day, the price per
share is likely to be based on the market price for our common stock, as quoted
on the NASDAQ Capital Market on the date of sale, unless shares are sold in
private transactions. Consequently, we cannot currently determine of the price
at which shares offered for resale pursuant to this prospectus may be
sold.
SELLING
SHAREHOLDERS
Selling
Shareholder Table
This prospectus covers shares of our
common stock, including shares currently issued and outstanding that
we sold in a private placement of our securities in February 2010 to “accredited
investors” as defined by Rule 501(a) under the Securities Act, pursuant to a
registration exemption under Section 4(2) of the Securities Act. The selling
shareholders may from time to time offer and sell under this prospectus any or
all of the shares listed opposite each of their names below as shown in the
“Shares Offered Hereby” column. Under registration rights agreements with each
investor in the private placement, we are required to register for resale the
shares of our common stock described in the table below.
We have prepared the table below based
upon the information previously furnished to us by the selling shareholders and
available corporate records. The selling shareholders identified below may have
sold, transferred or otherwise disposed of some or all of their shares since the
date on which the information in the following table is presented in
transactions exempt from or not subject to the registration requirements of the
Securities Act. Certain selling shareholders may be deemed to be “underwriters”
as defined in the Securities Act. Any profits realized by the selling
shareholders may be deemed to be underwriting commissions. Information
concerning the selling shareholders may change from time to time and, if
necessary, we will amend or supplement this prospectus
accordingly.
We cannot give an estimate as to the number of shares of common stock that will
be held by the selling shareholders upon termination of this offering because
the selling shareholders may offer some or all of their common stock under the
offering contemplated by this prospectus. The total number of shares that may be
sold hereunder will not exceed the number of shares offered hereby. Please read
the section entitled “Plan of Distribution” in this prospectus.
As noted in the footnotes to the table
below, we have been advised that each of such selling shareholders purchased our
common stock and warrants in the ordinary course of business, not for resale,
and that none of such selling shareholders had, at the time of purchase, any
agreements or understandings, directly or indirectly, with any person to
distribute the related common stock. Unless otherwise indicated in the footnotes
to the table below, none of the selling shareholders has or had any position,
office or other material relationship with the company or any of its
predecessors or affiliates within the past three years.
The
following table sets forth:
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the
names of the selling shareholders,
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the
number of shares of common stock beneficially owned by the selling
shareholders as of March 31, 2010, including shares underlying
warrants issued in the February 2010 private
placement,
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the
maximum number of shares of common stock that may be offered for the
account of the selling shareholders under this prospectus,
and
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the
amount and percentage of common stock that would be owned by the selling
shareholders after completion of the offering, assuming a sale of all of
the common stock that may be offered by this
prospectus.
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Under SEC rules, beneficial ownership
includes any shares of common stock as to which a person has sole or shared
voting power or investment power and any shares of common stock which the person
has the right to acquire within 60 days through the exercise of any option,
warrant or right, through conversion of any security or pursuant to the
automatic termination of a power of attorney or revocation of a trust,
discretionary account or similar arrangement. Beneficial ownership is calculated
based on 35,784,757 shares of our common stock outstanding as of March
31, 2010. In calculating the number of shares beneficially owned by a selling
shareholder and the percentage ownership, shares of common stock subject to
preferred stock conversion rights, options or warrants held by that person that
are currently exercisable or convertible or become exercisable or convertible
within 60 days after March 31, 2010 are deemed outstanding even if they
have not actually been exercised or converted. The shares issuable under these
securities are treated as outstanding for computing the percentage ownership of
the person holding these securities but are not treated as outstanding for the
purpose of computing the percentage ownership of any other
person.
Name of Selling Shareholder
|
|
Shares
Beneficially
Owned
Represented by
Common Stock
Before the
Offering (1)
|
|
|
Shares Offered
Hereby (2)
|
|
|
Shares
Beneficially
Owned After the
Offering (3)
|
|
|
Percentage of
Outstanding
Shares
Beneficially
Owned After the
Offering
|
|
Alan
Andalman (4)
|
|
|
114,109
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Mark
E. Anderson, Trustee of the Mark E. Anderson, M.D., A Professional
Corporation Profit Sharing Plan and Trust (5)
|
|
|
72,462
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Courtney
W. Brown (6)
|
|
|
72,462
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Cranshire
Capital (7)
|
|
|
1,335,575
|
|
|
|
724,638
|
|
|
|
0
|
|
|
|
–
|
|
John
Dirkson, Trustee of the Dirkson 2006 Family Trust (8)
|
|
|
144,926
|
|
|
|
144,926
|
|
|
|
0
|
|
|
|
–
|
|
Philip
Ditmanson (9)
|
|
|
165,749
|
|
|
|
144,926
|
|
|
|
0
|
|
|
|
–
|
|
Stanley
G. & Carol R. Eilers (10)
|
|
|
114,109
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Greg
Freitag (11)
|
|
|
93,285
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Fred
Halpern (12)
|
|
|
72,462
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Denise
Harrington (13)
|
|
|
115,942
|
|
|
|
115,942
|
|
|
|
0
|
|
|
|
–
|
|
Harborview
Master Fund, L.P. (14)
|
|
|
1,064,636
|
|
|
|
724,636
|
|
|
|
0
|
|
|
|
–
|
|
Steven
D. Johnson (15)
|
|
|
72,462
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Ridge
Clearing & Outsourcing Solutions, Custodian of the Steven D. Johnson –
IRA (16)
|
|
|
72,462
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Porter
Partners, LP (17)
|
|
|
658,042
|
|
|
|
289,854
|
|
|
|
0
|
|
|
|
–
|
|
William
W. Prain (18)
|
|
|
72,462
|
|
|
|
72,462
|
|
|
|
0
|
|
|
|
–
|
|
Scott
& Mary Strickland (19)
|
|
|
389,854
|
|
|
|
289,854
|
|
|
|
0
|
|
|
|
–
|
|
Mark
Wilton (20)
|
|
|
434,782
|
|
|
|
434,782
|
|
|
|
0
|
|
|
|
–
|
|
11
Good Energy, Inc. (21)
|
|
|
510,000
|
|
|
|
260,000
|
|
|
|
0
|
|
|
|
–
|
|
__________________
(1)
|
May
include shares owned by the selling shareholders that are registered for
resale on other registration
statements.
|
(2)
|
Reflects
the number of shares offered for resale by this prospectus on behalf of
each selling shareholder.
|
(3)
|
Assumes
all shares have been sold by each selling shareholder pursuant to a
prospectus under an effective registration statement or under Rule 144 of
the Securities Act.
|
(4)
|
Includes
36,231 shares of common stock currently outstanding, 35,400 shares of
common stock issuable upon conversion of our Series B preferred stock,
36,231 shares of common stock issuable upon exercise of warrants issued in
the February 2010 private placement and 6,247 shares of common stock
underlying warrants exercisable within 60 days. Mr. Andalman has sole
power to vote and dispose of the securities held. The selling shareholder
is not affiliated with a broker-dealer and acquired the securities to be
resold solely for the account of the selling shareholder, and not for the
account of any other person or with a view to any resale or distribution
thereof.
|
(5)
|
Includes
36,231 shares of common stock currently outstanding and 36,231 shares of
common stock issuable upon exercise of warrants issued in the
February 2010 private placement. The address for the Mark E. Anderson,
M.D., A Professional Corporation Profit Sharing Plan and Trust (the
“Profit Sharing Plan and Trust”) is 16300 Sand Canyon Avenue, Suite 1005,
Irvine, CA 92718. Mr. Anderson, as trustee, has sole power to
vote and dispose of the securities held by the Profit Sharing Plan and
Trust. The selling shareholder is not affiliated with a broker-dealer and
acquired the securities to be resold solely for the account of the selling
shareholder, and not for the account of any other person or with a view to
any resale or distribution
thereof.
|
(6)
|
Includes
36,231 shares of common stock currently outstanding and 36,231 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. Ms. Brown has sole power to vote and dispose of
the securities held. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(7)
|
Includes
514,566 shares of common stock currently outstanding, 172,833 shares of
common stock issuable upon conversion of our Series B preferred stock,
362,319 shares of common stock issuable upon exercise of warrants issued
in the February 2010 private placement and 285,857 shares of common stock
underlying warrants exercisable within 60 days. The address for Cranshire
Capital, L.P. (“Cranshire”) is 3100 Dundee Rd., Suite 703, Northbrook, IL
60062. Downsview Capital, Inc. (“Downsview”) is the general partner of
Cranshire and consequently has voting control and investment discretion
over securities held by Cranshire. Mitchell P. Kopin, President of
Downsview, has voting control over Downsview. As a result, each of Mr.
Kopin and Downsview may be deemed to have beneficial ownership (as
determined under Section 13 (d) of the Securities Exchange Act of 1934, as
amended) of the shares owned by Cranshire which are being registered
hereunder. The selling shareholder is not affiliated with a broker-dealer
and acquired the securities to be resold solely for the account of the
selling shareholder, and not for the account of any other person or with a
view to any resale or distribution
thereof.
|
(8)
|
Includes
72,463 shares of common stock currently outstanding and 72,463 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. The address for the Dirkson 2006 Family Trust is
200 Clover Springs Drive, Cloverdale, CA 95425. John Dirkson, as trustee
of the Family Trust, has sole power to vote and dispose of the securities
held by the Family Trust. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(9)
|
Includes
72,463 shares of common stock currently outstanding, 17,700 shares of
common stock issuable upon conversion of our Series B preferred stock,
72,463 shares of common stock issuable upon exercise of warrants issued in
the February 2010 private placement and 3,123 shares of common stock
underlying warrants exercisable within 60 days. Mr. Ditmanson has sole
power to vote and dispose of 144,926 shares and has shared power to vote
and dispose of the remaining 20,823 shares with Donna Zimmerman. The
selling shareholder is not affiliated with a broker-dealer and acquired
the securities to be resold solely for the account of the selling
shareholder, and not for the account of any other person or with a view to
any resale or distribution
thereof.
|
(10)
|
Includes
36,231 shares of common stock currently outstanding, 35,400 shares of
common stock issuable upon conversion of our Series B preferred stock,
36,231 shares of common stock issuable upon exercise of
warrants
issued in the February 2010 private placement
and 6,247 shares of
common stock underlying warrants exercisable within 60 days. Stanley G.
and Carol R. Eilers have shared power to vote and dispose of the
securities held. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(11)
|
Includes
36,231 shares of common stock currently outstanding, 17,700 shares of
common stock issuable upon conversion of our Series B preferred stock,
36,231 shares of common stock issuable upon exercise of warrants issued in
the February 2010 private placement and 3,123 shares of common stock
underlying warrants exercisable within 60 days. Mr. Feitag has sole power
to vote and dispose of the securities held. The selling shareholder is not
affiliated with a broker-dealer and acquired the securities to be resold
solely for the account of the selling shareholder, and not for the account
of any other person or with a view to any resale or distribution
thereof.
|
(12)
|
Includes
36,231 shares of common stock currently outstanding and 36,231 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. Mr. Halpern has sole power to vote and dispose of
the securities held. The selling shareholder is not affiliated
with a broker-dealer and acquired the securities to be resold solely for
the account of the selling shareholder, and not for the account of any
other person or with a view to any resale or distribution
thereof.
|
(13)
|
Includes
57,971shares of common stock currently outstanding and 57,971 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. Ms. Harrington has sole power to vote and dispose
of the securities held. The selling shareholder is not
affiliated with a broker-dealer and acquired the securities to be resold
solely for the account of the selling shareholder, and not for the account
of any other person or with a view to any resale or distribution
thereof.
|
(14)
|
Includes
662,318 shares of common stock currently outstanding, 362,318 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement and 40,000 shares of common stock underlying
warrants exercisable within 60 days. The address for Harborview Master
Fund, L.P. (“Harborview”) is 850 Third Avenue, Suite 1801, New York, NY
10022. Richard Rosenblum and David Stefansky have shared power to vote and
dispose of the securities held. The selling shareholder is not affiliated
with a broker-dealer and acquired the securities to be resold solely for
the account of the selling shareholder, and not for the account of any
other person or with a view to any resale or distribution
thereof.
|
(15)
|
Includes
36,231 shares of common stock currently outstanding and 36,231 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. Mr. Johnson has sole power to vote and dispose of
the securities held. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(16)
|
Includes
36,231 shares of common stock currently outstanding and 36,231 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. The address for Ridge Clearing & Outsourcing
Solutions is 1981 Marcus Ave, 2
nd
Floor, Lake Success, NY 11042. Ridge Clearing &
Outsourcing, as custodian of the Steven D. Johnson IRA, has sole power to
vote and dispose of the securities. The selling shareholder is not
affiliated with a broker-dealer and acquired the securities to be resold
solely for the account of the selling shareholder, and not for the account
of any other person or with a view to any resale or distribution
thereof.
|
(17)
|
Includes
304,476 shares of common stock currently outstanding, 144,927 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement and 208,639 shares of common stock underlying
warrants exercisable within 60 days. The address for Porter Partners, L.P.
is 300 Drakes Landing Rd., Suite 175, Greenbrae, CA 94904. Jeffrey H.
Porter has sole power to vote and dispose of the securities held by Porter
Partners, L.P. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(18)
|
Includes
36,231 shares of common stock currently outstanding and 36,231 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement . Mr. Prain has sole power to vote and dispose of
the securities held. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(19)
|
Includes
144,927 shares of common stock currently outstanding, 85,000 shares of
common stock issuable upon conversion of our Series B preferred stock,
144,927 shares of common stock issuable upon exercise of warrants issued
in the February 2010 private placement and 15,000 shares of common stock
underlying warrants exercisable within 60 days. Scott and Mary Strickland
have shared power to vote and dispose of the securities
held. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(20)
|
Includes
217,391 shares of common stock currently outstanding and 217,391 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. Mr. Wilton has sole power to vote and dispose of
the securities held. The selling shareholder is not affiliated with a
broker-dealer and acquired the securities to be resold solely for the
account of the selling shareholder, and not for the account of any other
person or with a view to any resale or distribution
thereof.
|
(21)
|
Includes
380,000 shares of common stock currently outstanding and 130,000 shares of
common stock issuable upon exercise of warrants issued in the February
2010 private placement. The address for 11 Good Energy, Inc. is 4450
Belden Village Street, Suite 800, Canton, OH, 44718. Frederick
C. Berndt has sole power to vote and dispose of the securities held. The
selling shareholder is not affiliated with a broker-dealer and acquired
the securities to be resold solely for the account of the selling
shareholder, and not for the account of any other person or with a
view to any resale or distribution
thereof.
|
PLAN
OF DISTRIBUTION
Distribution
by Selling Shareholders
This
prospectus relates to shares of our common stock held by the selling
shareholders. Each selling shareholder 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 NASDAQ Capital
Market, 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 shareholder 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 shareholders 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 shareholders also may sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling shareholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling shareholders (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
shareholders 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
shareholders also may sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The
selling shareholders also may enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
selling shareholders 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 shareholders 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
shareholders.
We agreed
to keep this prospectus effective until all securities registered under the
registration statement have been sold or are otherwise able to be sold pursuant
to Rule 144 under the Securities Act, without regard to volume limitations,
provided we comply with our reporting obligations. The shares will be
sold only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the shares may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934, any
person engaged in the distribution of the shares may not simultaneously engage
in market making activities with respect to the common stock for the applicable
restricted period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the selling shareholders 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 shareholders or any other
person. We will make copies of this prospectus available to the
selling shareholders and will inform them of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the sale (including by
compliance with Rule 172 under the Securities Act).
We are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares. We have agreed to indemnify the selling
shareholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
The
selling shareholders may offer all of the shares of common stock for
sale. Further, because it is possible that a significant number of
shares could be sold at the same time under this prospectus, such sales, or that
possibility, may depress the market price of our common stock. We
cannot assure you, however, that any of the selling shareholders will sell any
or all of the shares of common stock they may offer.
Transfer
Agent
The
transfer agent and registrar for our common stock is:
Olde
Monmouth Stock Transfer Co., Inc.
200
Memorial Parkway
Atlantic
Highlands, NJ 07716
(732)
872-2727
Provisions
of Florida Law
Affiliated Transactions.
As a
Florida corporation, we are subject to the Florida Business Corporation Act, or
“Florida Act,” which provides that an “affiliated transaction” of a Florida
corporation with an “interested shareholder,” as those terms are defined in the
statute, generally must be approved by the affirmative vote of the holders of
two-thirds of the outstanding voting shares, other than the shares beneficially
owned by the interested shareholder. The Florida Act defines an “interested
shareholder” as any person who is the beneficial owner of more than 10% of the
outstanding voting shares of the corporation.
The
foregoing restrictions do not apply if the corporation’s original articles of
incorporation or an amendment to its articles of incorporation or bylaws
approved by the affirmative vote of the holders of a majority of the outstanding
shares of voting stock of the corporation (other than shares held by the
interested shareholder) contain a provision expressly electing for the
corporation not to be governed by the restrictions. Our articles and bylaws do
not contain such a provision.
Control-Share
Acquisitions.
The
Florida Act also contains a control-share acquisition statute which provides
that a person who acquires shares in an “issuing public corporation,” as defined
in the statute, in excess of certain specified thresholds generally will not
have any voting rights with respect to such shares unless such voting rights are
approved by the holders of a majority of the votes of each class of securities
entitled to vote separately, excluding shares held or controlled by the
acquiring person. The thresholds specified in the Florida Act are the
acquisition of a number of shares representing: (1) at least 20% but less than
33−1/3% of all voting power; (2) at least 33−1/3% but less than a majority of
all voting power; or (3) a majority or more of all voting power. The
statute does not apply if, among other things, the acquisition is approved by
the corporation’s board of directors, or is effected pursuant to a statutory
merger or share exchange to which the corporation is a party.
The
statute also does not apply to an acquisition of shares of a corporation in
excess of a specified threshold if, before the acquisition, the corporation’s
articles of incorporation or bylaws provide that the corporation will not be
governed by the statute. The statute also permits a corporation to adopt a
provision in its articles of incorporation or bylaws providing for the
redemption of the acquired shares by the corporation in specified
circumstances. Our articles and bylaws do not contain such
provisions.
Florida
law and our Bylaws also authorize us to indemnify our directors, officers,
employees and agents under certain circumstances. In addition,
Florida law presently limits the personal liability of corporate directors for
monetary damages, except where the directors (i) breach their fiduciary duties
and (ii) such breach constitutes or includes certain violations of criminal law,
a transaction from which the directors derived an improper personal benefit,
certain unlawful distributions or certain other reckless, wanton or willful acts
or misconduct.
LEGAL
MATTERS
Hogan Lovellas US LLP, 555
Thirteenth Street, N.W., Washington, DC 20004, will pass upon the validity of
the shares of common stock offered in this prospectus.
EXPERTS
The
consolidated financial statements of New Generation Biofuels Holdings, Inc. as
of December 31, 2009 and for the year then ended, are incorporated by reference
herein in reliance upon the report of Reznick Group, P.C., independent
regis
tered
public accounting firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and
auditing.
The
audit
report of Reznick Group, P.C. on the aforementioned consolidated
finan
cial
statements contains an explanatory paragraph stating that our negative cash
flows from operations and dependence on future financing raise substantial doubt
about our ability to continue as a going concern. The consolidated financial
statements do no
t
include
any adjustments that might result from the outcome of this
uncertainty.
The
consolidated financial statements of New Generation Biofuels Holdings, Inc. as
of December 31, 2008 and for the year then ended, are incorporated by reference
herein in r
eliance
upon the report of Imowitz,
Koenig & Co., LLP
,
independent registered public accounting firm, incorporated by reference herein,
and upon the authority of said firm 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.
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
5850
Waterloo Road, Suite 140
Columbia,
Maryland 21045
(410)
480-8084
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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·
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2009,
as amended (SEC File No.
001-34022);
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·
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our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2010 (SEC
File No 001-34022);
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·
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our
Current Reports on Form 8-K filed on April 2, 2010, May 6, 2010 and May
13, 2010 (SEC File No.
001-34022);
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·
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all
documents filed by us with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this prospectus and before
termination of this offering; and
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·
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the
description of our common stock contained in our Registration Statement on
Form 8-A filed on April 14, 2008 and as amended on 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.
3,781,716
Common
Stock
Prospectus
June
__, 2010
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The following table sets forth the
estimated expenses that the registrant has incurred in connection with the
filing of this registration statement. All of the amounts shown are
estimates, except for the SEC registration fee.
SEC
Registration Fees
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$
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191
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Transfer
Agent Fees
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300
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Legal
Fees and Expenses
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10,000
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Printing
and Engraving Expenses
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2,000
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Accounting
Fees and Expenses
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3,000
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Miscellaneous
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−
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Total
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$
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15,491
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Item
15. Indemnification of Directors and Officers.
Section
607.0850 of the Florida Act provides for the indemnification of officers,
directors, employees, and agents. A corporation shall have power to indemnify
any person who was or is a party to any proceeding (other than an action by, or
in the right of, the corporation), by reason of the fact that he or she is
or was a director, officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against liability incurred in connection with such proceeding,
including any appeal thereof, if he or she acted in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any proceeding by judgment, order, settlement, or conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
We have
agreed to indemnify each of our directors and certain officers against certain
liabilities, including liabilities under the Securities Act. Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons pursuant to the
provisions described above, or otherwise, we have been advised that in the
opinion of the U.S. Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than our payment of expenses incurred or paid by our
director, officer or controlling person in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, we will, unless in the
opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Item 16.
Exhibits.
The
exhibits to this Registration Statement are listed on the Exhibit Index, which
is incorporated by reference to this Item 16.
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 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(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) of this section do
not apply if 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 section 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) (§230.424(b) of this chapter) that is part of the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on
Rule 430A (§230.430A of this chapter), shall be deemed to be part of and
included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supersede or
modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such date of first use.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing this
Pre-Effective Amendment No. 2 to Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbia, State of Maryland on June 1,
2010.
NEW
GENERATION BIOFUELS HOLDINGS, INC.
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By:
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/s/
Cary J. Claiborne
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Cary
J. Claiborne
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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, Pre-Effective Amendment No. 2 to this registration
statement has been signed by the following persons in the
capacities indicated on June 1, 2010.
Name
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Title
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/s/
Cary J.
Claiborne
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President
and Chief Executive Officer
(principal
executive officer
)
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Cary
J. Claiborne
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/s/
Dane R. Saglio
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Chief
Financial Officer
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Dane
R. Saglio
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(principal
financial and accounting officer)
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/s/ John E.
Mack
*
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Chairman
of the Board
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John
E. Mack
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/s/
David H. Goebel, Jr.
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Chief
Operating Officer and Director
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David
H. Goebel, Jr.
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/s/
Dougles
S. Perry
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Director
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Dougles
S.
Perry
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/s/ James Robert
Sheppard, Jr.
*
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Director
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James
Robert Sheppard, Jr.
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*
By:
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/s/
Cary J.
Claiborne
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Cary
J.
Claiborne
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Attorney-in-Fact
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EXHIBIT
INDEX
Exhibit
Number
|
|
Description of Documents
|
|
|
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5.1
†
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Opinion
of Hogan & Hartson LLP.
(1)
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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 Reznick Group, P.C.
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23.3†
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Consent
of Hogan & Hartson (included in Exhibit 5.1).
(1)
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24.1†
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Power
of Attorney (included on signature page
hereof).
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* Filed
herewith.
† Previously filed.
(1)
Hogan & Hartson
LLP is Hogan Lovells US LLP as of May 1,
2010.
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