As filed with the Securities and Exchange Commission on March 7, 2008
Registration No. 333-143537
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 4
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
Z TRIM HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
ILLINOIS 36-4197173
(STATE OR OTHER JURISDICTION) (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION IDENTIFICATION NO.)
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1011 CAMPUS DRIVE
MUNDELEIN, ILLINOIS 60060
(847) 549-6002
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES
AND PRINCIPAL PLACE OF BUSINESS)
STEVEN J. COHEN
PRESIDENT
1011 CAMPUS DRIVE
MUNDELEIN, ILLINOIS 60060
(847) 549-6002
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPY TO:
STEPHEN R. DRAKE, ESQ.
EPSTEIN BECKER & GREEN, P.C.
150 N. MICHIGAN AVE., 35TH FLOOR
CHICAGO, ILLINOIS 60601-7553
(312) 499-1400
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offering
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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 divided 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. [ ]
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Amount To Be Proposed Maximum Offering Proposed Maximum Amount of
Securities To Be Registered Registered(2) Price Per Unit(3) Aggregate Offering Price Registration Fee(4)
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Common Stock 12,740,000 shares _____ _________ _____
(par value $.00005 per
share)(1)
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(1) Includes 3,470,000 shares of common stock underlying warrants.
(2) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
registration statement shall be deemed to cover additional securities that may
be offered or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
i(3) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, based on the average of the high and low prices reported for shares of
Common Stock of the Registrant, as of March 7, 2008, as reported on the
American Stock Exchange.
(4) Previously the Company paid a registration fee of $438 in connection
with the original filing to register 12,450,000 shares, and a fee of $9 in
connection with Ammendment No. 1 on account of the additional 290,000 shares
added to the amount being registered pursuant to that ammendment.
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
2
SUBJECT TO COMPLETION, DATED MARCH 7, 2008
PROSPECTUS
Z TRIM HOLDINGS, INC.
COMMON STOCK
This prospectus relates to the sale or other disposition of 12,740,000
shares of our common stock, including 3,470,000 shares of common stock
underlying warrants, by the Selling Stockholders named in this prospectus or
their transferees. The issuance of the shares upon exercise of the warrants is
not covered by this prospectus; only the resale of the shares underlying the
warrants is covered. For information about the Selling Stockholders see "Selling
Stockholders" on page 22. We will not receive any of the proceeds from the sale
of the shares of common stock by the Selling Stockholders, but will receive
proceeds related to the exercise for cash of the warrants held by the Selling
Stockholders.
On March 27, 2007, we entered into private placement subscription
agreements pursuant to which we sold unregistered shares of our common stock,
par value $0.00005 per share ("Common Stock"), and warrants exercisable for
Common Stock. We sold 80 units in the private placement at a price of $100,000
per unit, with each unit consisting of 100,000 shares of Common Stock and a
five-year warrant with an exercise price of $1.20 per share to purchase 25,000
shares of Common Stock (the "Warrants"). In the aggregate we sold 8,000,000
shares of Common Stock, and Warrants to purchase an additional 2,000,000 shares
of Common Stock. We received gross proceeds of $8,000,000 from these sales. We
also entered into a registration rights agreement in connection with the private
placement pursuant to which we agreed to file with the Securities and Exchange
Commission this registration statement covering the resale of the Common Stock
and Common Stock underlying the Warrants.
JP Turner & Company, LLC ("JP Turner") served as the lead placement agent
in connection with the private placement. JP Turner, together with any affiliate
placement agents, received warrants to purchase 1,200,000 shares of Common Stock
on terms which are identical to the Warrants included in the units except that
the exercise price is $1.00 per share. In addition, the placement agent's
warrant has registration rights that are the same as those afforded to investors
in the private placement.
In addition to the March, 2007 offering, we previously sold unregistered
shares of Common Stock and warrants exercisable for Common Stock in private
sales and settlements at privately negotiated prices. In the aggregate, we sold
1,270,000 shares of Common Stock and warrants to purchase an additional 270,000
shares of Common Stock in these sales.
The Selling Stockholders may offer their shares of Common Stock from time
to time through public or private transactions, on or off of the American Stock
Exchange at prevailing market prices or at privately negotiated prices. We will
not receive any of the proceeds from the sale of the shares of Common Stock by
the Selling Stockholders, but will receive proceeds related to the exercise for
cash of warrants held by the Selling Stockholders.
The Selling Stockholders, and any participating broker-dealers may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933,
and any commissions or discounts given to any such broker-dealer may be regarded
as underwriting commissions or discounts under the Securities Act. The Selling
Stockholders have informed us that they do not have any agreement or
understanding, directly or indirectly, with any person to distribute their
common stock.
Brokers or dealers effecting transactions in the shares should confirm the
registration of these securities under the securities laws of the states in
which transactions occur or the existence of applicable exemptions from such
registration.
3
Our common stock is listed on the American Stock Exchange under the symbol
"ZTM." The last reported sale price of our common stock on the American Stock
Exchange on March 6, 2008 was $0.35 per share.
INVESTING IN THE COMMON STOCK INVOLVES RISKS. WE URGE YOU TO READ CAREFULLY
THE "RISK FACTORS" BEGINNING ON PAGE 18 BEFORE MAKING YOUR INVESTMENT DECISION.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL AND COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS MARCH 7, 2008
4
TABLE OF CONTENTS
PAGE
Prospectus Summary 6
Risk Factors 18
Use Of Proceeds 23
Selling Stockholders 23
Plan Of Distribution 27
Legal Matters 29
Experts 29
Incorporation Of Certain Documents By Reference 29
Where You Can Get More Information 31
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5
PROSPECTUS SUMMARY
ABOUT THIS PROSPECTUS
You should rely only on the information contained or incorporated by reference
in this prospectus and any applicable prospectus supplements. We have not
authorized any other person to provide you with different information. We will
not make an offer to sell these securities in any jurisdiction where the offer
or sale is not permitted. You should assume that the information appearing in
this prospectus is accurate only as of the date on the cover page.
THE COMPANY
Z Trim Holdings, Inc. is an emerging growth company focused on the production,
marketing and distribution of functional food ingredients and formulated foods
for both domestic and international markets. Z Trim is a USDA-developed,
all-natural, zero calorie functional food ingredient made from healthy dietary
fiber. The Company has an extensive intellectual property portfolio, highlighted
by an exclusive license from the USDA to make, use and sell Z Trim both
domestically and internationally. Currently, corn and oats are used to make Z
Trim, but it can be produced from virtually any other agricultural product.
Current Z Trim products include gel and powder used to replace portions of fat,
gums, starches and carbohydrates in foods, and as a fiber ingredient for the
nutraceutical industry. The Company's core product portfolio of wellness foods
and dietary fiber food ingredients includes corn Z Trim, non-GMO oat Z Trim, and
functional emulsions and gels. Z Trim is now being used by manufacturers,
restaurants, schools, and consumers on 5 continents to replace as much as 80% of
the fat and calories in foods without changing taste, texture, appearance or
digestive properties in baked goods, dairy products, snacks, deserts, sauces,
dressings, processed meats and many other foods.
Z Trim is an all natural functional food ingredient made from plant fiber and
comprises essentially an amorphous cellulose gel. Produced by a proprietary
process that converts crude fiber grain components into cereal hydro-colloidal
compositions, Z Trim is rich in soluble and insoluble fiber, devoid of fat and
calories, neutral in taste and totally compatible in texture with foods in which
it is used. In concrete terms, we believe this patented, proven ingredient
system can significantly improve the nutritional profile of foods without
compromising the taste delivery and mouth-feel properties of full-fat products
that are critical to the brands of every major food company.
After years of development, Z Trim is now commercialized. The Company currently
manufactures and markets Z Trim as a competitive ingredient that improves the
food industry's ability to deliver on its promises of healthier foods. The
Company's primary goal is establishing Z Trim as an important ingredient in
revolutionizing the food industry. The Company is developing its market through
(i) direct sales to major food manufacturers, as well as several small and mid
size companies, (ii) direct sales to the consumer, and (iii) direct sales to
large food institutions such as those that supply to restaurants, hospitals,
schools and cafeterias. We have an aggressive plan to educate both the food
industry and consumers about the uses and benefits of Z Trim products, and we
continue to develop additional products in partnership with our customers to
service multiple markets.
6
THE OFFERING
This prospectus relates to the sale of other disposition of 12,740,000
shares of our Common Stock, including 3,470,000 shares of Common Stock
underlying warrants by the Selling Stockholders named in this prospectus or
their transferees. The Selling Stockholders may offer their shares of Common
Stock from time to time through public or private transactions, on or off of the
American Stock Exchange at prevailing market prices or at privately negotiated
prices. We will not receive any of the proceeds from the sale of the shares of
common stock by the Selling Stockholders, but will receive proceeds related to
the exercise for cash of warrants held by the Selling Stockholders.
CORPORATE INFORMATION
We have one operating subsidiary, FiberGel Technologies, Inc. Our executive
offices are located at 1011 Campus Drive, Mundelein, Illinois, 60060. Our phone
number is (847) 549-6002. Our website is www.ztrim.com. Information on our web
site is not intended to be incorporated into this prospectus.
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RISK FACTORS
YOU SHOULD CONSIDER THE FOLLOWING RISK FACTORS IN ADDITION TO THE OTHER
INFORMATION IN THIS PROSPECTUS BEFORE INVESTING IN THE SHARES. AN INVESTMENT IN
OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY CONSIDER
THE FOLLOWING RISK FACTORS, OTHER INFORMATION INCLUDED IN THIS PROSPECTUS AND
INFORMATION IN OUR PERIODIC REPORTS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR, OUR BUSINESS,
FINANCIAL CONDITION OR RESULTS OF OPERATIONS COULD BE MATERIALLY AND ADVERSELY
AFFECTED AND YOU MAY LOSE SOME OR ALL OF YOUR INVESTMENT.
BUSINESS RISKS
WE HAVE A HISTORY OF OPERATING LOSSES AND CANNOT GUARANTEE PROFITABLE OPERATIONS
IN THE FUTURE. ANY FAILURE ON OUR PART TO ACHIEVE PROFITABILITY MAY CAUSE US TO
REDUCE OR EVENTUALLY CEASE OPERATIONS.
We reported a net loss of $16,414,503 for the twelve months ending December
31, 2006 and a net loss of $10,448,063 for the nine months ending September 30,
2007. At December 31, 2006 and September 30, 2007, respectively, we reported
accumulated deficits of $49,467,918 and $59,960,077. If we continue to incur
significant losses, our cash reserves may be depleted earlier than currently
anticipated, and we may be required to limit our future growth objectives to
levels corresponding with our then available cash reserves.
OUR SUCCESS IS DEPENDENT ON MARKET ACCEPTANCE OF OUR PRODUCT.
We have not conducted, nor have others made available to us, results of
market research indicating how much market demand exists for Z Trim, our
functional food ingredient. We are relying on the current concerns over obesity,
weight-health issues, and the rising cost of health care to drive demand for Z
Trim in the marketplace. We cannot assure you that we will be able to gain the
market acceptance necessary to achieve profitability.
WE MAKE NO PROJECTIONS REGARDING THE VIABILITY OF OUR FUNCTIONAL FOOD INGREDIENT
AND WE CANNOT ASSURE YOU THAT WE WILL ACHIEVE THE RESULTS DESCRIBED.
We make no projection with respect to our future income, assets or
business. No expert has reviewed our business plan for accuracy or
reasonableness. It is likely that our actual business and results of operations
will differ from those presented herein.
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WE WILL NEED ADDITIONAL FUNDING AND SUCH FUNDING MAY NOT BE AVAILABLE. IF SUCH
FUNDING IS AVAILABLE, IT MAY NOT BE OFFERED ON SATISFACTORY TERMS.
We will require additional financing to fund ongoing operations, as our
current sales and revenue growth are insufficient to meet our operating costs.
Our inability to obtain necessary capital or financing to fund these needs will
adversely affect our ability to fund operations and continue as a going concern.
Our inability to obtain necessary capital or financing to fund these needs could
adversely affect our business, results of operations and financial condition.
Additional financing may not be available when needed or may not be available on
terms acceptable to us. If adequate funds are not available, we may be required
to delay, scale back or eliminate one or more of our business stragtegies, which
may affect our overall business results of operations and financial condition.
THE AVAILABILITY AND COST OF AGRICULTURAL PRODUCTS THAT WE USE IN OUR BUSINESS
ARE SUBJECT TO WEATHER AND OTHER FACTORS BEYOND OUR CONTROL.
All of our current products depend on our proprietary technology using
agricultural products, mainly corn and oat. Historically, the costs of corn and
oat are subject to substantial fluctuations depending upon a number of factors
which affect commodity prices in general and over which we have no control,
including crop conditions, weather, government programs and purchases by foreign
governments.
WE FACE COMPETITION.
Competition is intense in our targeted industries, including nutraceuticals,
functional food ingredients, oils, gums and a large number of businesses engaged
in the various fat replacement industries. Many of our competitors have
established reputations for successfully developing and marketing their
products, including products that are widely recognized as providing similar
calorie reduction. In addition, many of our competitors have greater financial,
managerial, and technical resources than us. If we are not successful in
competing in these markets, we may not be able to attain our business
objectives.
19
WE MAY EXPAND OUR OPERATIONS BY MAKING ACQUISITIONS WHICH COULD SUBJECT US TO A
NUMBER OF OPERATIONAL RISKS.
In order to grow our business, we may expand our operations by acquiring
other businesses in the future. We cannot predict whether or when any
acquisitions will occur. Acquisitions commonly involve certain risks, and we
cannot assure you that any acquired business will be successfully integrated
into our operations or will perform as we expect. Any future acquisitions could
involve certain other risks, including the assumption of additional liabilities,
potentially dilutive issuances of equity securities, and diversion of
management's attention from other business concerns. We may also enter into
joint venture transactions. Joint ventures have the added risk that the other
joint venture partners may have economic, business or legal interests or
objectives that are inconsistent with our interests and objectives.
OUR INABILITY TO SECURE AND PROTECT OUR INTELLECTUAL PROPERTY MAY RESULT IN
COSTLY AND TIME-CONSUMING LITIGATION AND COULD IMPEDE US FROM EVER ATTAINING
MARKET SUCCESS.
We hold several patents as well as copyrights and trademarks with respect to our
products and expect to continue to file applications in the future as a means of
protecting our intellectual property. In addition, we seek to protect our
proprietary information and know-how through the use of trade secrets,
confidentiality agreements and other similar security measures. With respect to
patents, there can be no assurance that any applications for patent protection
will be granted, or, if granted, will offer meaningful protection.
Additionally, there can be no assurance that competitors will not develop,
patent or gain access to similar know-how and technology, or reverse engineer
our products, or that any confidentiality agreements upon which we rely to
protect our trade secrets and other proprietary information will be adequate to
protect our proprietary technology. The occurrence of any such events could have
a material adverse effect on our results of operations and financial condition.
OUR STOCK PRICE MAY DROP UNEXPECTEDLY DUE TO SHORT SELLING OF OUR COMMON STOCK
IN THE MARKET.
Regulation SHO began on January 3, 2005 and was adopted to update short sale
regulation in light of numerous market developments since short sale regulation
was first adopted in 1938. We have experienced and may continue to experience
unexpected declines in our stock price due to manipulation of the market by
individuals who profit by short selling our common stock. Short selling occurs
when an individual borrows shares from an investor through a broker and then
sells those borrowed shares at the current market price. The "short seller"
profits when the stock price falls because he or she can repurchase the stock at
a lower price and pay back the person from whom he or she borrowed, thereby
making a profit. We cannot assure you that short sellers will not continue to
drive the stock price down in the future, causing decline in the value of your
investment.
20
THE FLUCTUATION IN OUR STOCK PRICE MAY RESULT IN A DECLINE IN THE VALUE OF YOUR
INVESTMENT.
The price of our common stock may fluctuate widely, depending upon many
factors, including the differences between our actual financial and operating
results and those expected by investors and analysts, changes in analysts'
recommendations or projections, short selling of our stock in the market,
changes in general economic or market conditions and broad market fluctuations.
Companies that experience volatility in the market price of their securities
often are subject to securities class action litigation. This type of
litigation, if instituted against us, could result in substantial costs and
divert management's attention and resources away from our business.
MARKET RISKS
THE COMMON STOCK IS SUBJECT TO THE PENNY STOCK RULES.
The term "penny stock" generally refers to low-priced, speculative
securities of very small companies. Before a broker-dealer can sell a penny
stock, SEC rules require the broker-dealer to first approve the customer for the
transaction and receive from the customer a written agreement to the
transaction. The broker-dealer must furnish the customer a document describing
the risks of investing in penny stocks. The broker-dealer must tell the customer
the current market quotation, if any, for the penny stock and the compensation
the broker-dealer and its broker will receive for the trade. Finally, the
broker-dealer must send monthly account statements showing the market value of
each penny stock held in the customer's account. These requirements make penny
stocks more difficult to trade. Because the Common Stock is subject to the penny
stock rules, the market liquidity of the Common Stock may be adversely affected.
SHARES ELIGIBLE FOR FUTURE SALE MAY ADVERSELY AFFECT THE MARKET.
From time to time, certain of our shareholders may be eligible to sell all
or some of their shares of Common Stock by means of ordinary brokerage
transactions in the open market pursuant to Rule 144, promulgated under the
Securities Act, subject to certain limitations. In general, pursuant to Rule
144, a stockholder (or shareholders whose shares are aggregated) who has
satisfied a six-month holding period may, under certain circumstances, sell
within any three-month period a number of securities which does not exceed the
greater of 1% of the then outstanding shares of Common Stock or the average
weekly trading volume of the class during the four calendar weeks prior to such
sale. Rule 144 also permits, under certain circumstances, the sale of
securities, without any limitation, by our shareholders that are non-affiliates
that have satisfied a one-year holding period. Any substantial sale of our
Common Stock pursuant to Rule 144 or pursuant to any resale prospectus may have
a material adverse effect on the market price of the Common Stock.
THE ISSUANCE OF ADDITIONAL COMMON STOCK COULD RESULT IN SUBSTANTIAL DILUTION.
We will need additional equity funding to provide the capital to achieve
our objectives. Such equity issuance would cause a substantially larger number
of shares to be outstanding, thereby diluting the ownership interest of our
existing shareholders. In addition, public sales of substantial amounts of the
Common Stock after this registration statement could reduce the market price for
the Common Stock. If we raise capital in the future by issuing additional equity
securities, investors may experience a decline in the value of their securities.
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THE TRADING PRICE OF THE COMMON STOCK IS VOLATILE, WHICH COULD CAUSE THE VALUE
OF AN INVESTMENT OUR SECURITIES TO DECLINE.
The market price of shares of our Common Stock has been volatile. The price
of the Common Stock may continue to fluctuate in response to a number of
factors, such as:
o developments and resolution of current litigation that we are a party to;
o our cash resources and our ability to obtain additional funding;
o announcements by us or a competitor of business development or exhibition
projects;
o our entering into or terminating strategic business relationships;
o changes in government regulations;
o changes in our revenue or expense levels; and
o negative reports on us by security analysts;
The occurrence of any of these events may cause the price of the Common
Stock to fall. In addition, the stock market in general has experienced
volatility that often has been unrelated to the operating performance or
financial condition of individual companies. Any broad market or industry
fluctuations may adversely affect the trading price of our Common Stock,
regardless of operating performance or prospects.
WE DO NOT PLAN TO PAY DIVIDENDS TO HOLDERS OF COMMON STOCK.
We do not anticipate paying cash dividends to the holders of the Common
Stock at any time. Accordingly, investors must rely upon subsequent sales after
price appreciation as the sole method to realize a gain on investment. There are
no assurances that the price of Common Stock will ever appreciate in value.
Investors seeking cash dividends should not buy our securities.
Disclosures About Forward-Looking Statements. This prospectus contains
forward-looking statements within the safe harbor provisions of the Private
Securities Litigation Report Act of 1995. All statements other than those that
are purely historical are forward-looking statements. Words such as "expect,"
"anticipate," "believe," "estimate," "intend," "plan," "potential" and similar
expressions also identify forward-looking statements. Because these
forward-looking statements involve risks and uncertainties, there are important
factors that could cause our actual results, as well as our expectations
regarding materiality or significance, to differ materially from those in the
forward-looking statements. Forward-looking statements may included, but are not
limited to, statements with respect to our history of operating losses, lack of
significant market acceptance of our product, the fact that we will need to
raise additional capital, and our reliance on intellectual property. You should
not place undue reliance on these forward-looking statements, which speak only
as of the date made. These forward-looking statements are based on our current
expectations and are subject to a number of risks and uncertainties, including
those identified under "Risk Factors" and elsewhere included and incorporated by
reference in this prospectus. Although we believe that the expectations
reflected in these forward-looking statements are reasonable, our actual results
could differ materially from those expressed in these forward-looking
statements, and any events anticipated in the forward-looking statements may not
actually occur. Except as required by law, we undertake no duty to update any
forward-looking statements after the date of this prospectus to conform those
statements to actual results or to reflect the occurrence of unanticipated
events. We qualify all forward-looking statements contained in this prospectus
by the foregoing cautionary statements.
22
USE OF PROCEEDS
All of the shares of Common Stock offered by this prospectus are being
offered by the Selling Stockholders. For information about the Selling
Stockholders, see "Selling Stockholders" on page 22. We will not receive any of
the proceeds from the sale of the shares of Common Stock offered by the Selling
Stockholders, but will receive proceeds related to the exercise of warrants for
cash held by the Selling Stockholders. We intend to use the net proceeds
generated by such warrant exercises for general corporate purposes, including
but not limited to working capital, capital expenditures and acquisitions, if
any. We cannot estimate how many, if any, warrants and options may be exercised
as a result of this offering. We are obligated to bear the expenses of the
registration of the shares. We anticipate that these expenses will be
approximately $25,000.
SELLING STOCKHOLDERS
This prospectus relates to the sale or other disposition of 12,740,000
shares of our common stock, including 3,470,000 shares of common stock
underlying warrants, by the Selling Stockholders or their transferees. The
issuance of the shares upon exercise of warrants is not covered by this
prospectus; only the resale of the shares underlying warrants are covered.
On March 27, 2007, we entered into private placement subscription
agreements pursuant to which we sold unregistered shares of our common stock,
par value $0.00005 per share ("Common Stock"), and warrants exercisable for
Common Stock. We sold 80 units in the private placement at a price of $100,000
per unit, with each unit consisting of 100,000 shares of Common Stock and a
five-year warrant with an exercise price of $1.20 per share to purchase 25,000
shares of Common Stock (the "Warrants"). In the aggregate we sold 8,000,000
shares of Common Stock, and Warrants to purchase an additional 2,000,000 shares
of Common Stock. We received gross proceeds of $8,000,000 from these sales. We
also entered into a registration rights agreement in connection with the private
placement pursuant to which we agreed to file with the Securities and Exchange
Commission this registration statement covering the resale of the Common Stock
and Common Stock underlying the Warrants.
JP Turner & Company, LLC ("JP Turner") served as the lead placement agent
in connection with the private placement. JP Turner, together with any affiliate
placement agents, received warrants to purchase 1,200,000 shares of Common Stock
on terms which are identical to the Warrants included in the units except that
the exercise price is $1.00 per share. In addition, the placement agent's
warrant has registration rights that are the same as those afforded to investors
in the private placement.
In addition to the March, 2007 offering, we previously sold unregistered
shares of Common Stock and warrants exercisable for Common Stock in private
sales and settlements at privately negotiated prices. In the aggregate, we sold
1,270,000 shares of Common Stock and warrants to purchase an additional 270,000
shares of Common Stock in these sales.
23
The following table sets forth information with respect to the beneficial
ownership of our common stock as of March 7, 2007, by each of the Selling
Stockholders and the maximum number of shares that may be sold hereunder. The
term "Selling Stockholder" includes the stockholders listed below and their
respective transferees, assignees, pledges, donees and other successors. The
number of shares that may be actually sold by any Selling Stockholder will be
determined by the Selling Stockholder. Because the Selling Stockholders may sell
all, some or none of the shares of common stock which they hold, and because the
offering contemplated by this prospectus is not currently being underwritten, no
estimate can be given as to the number of or percentage of total shares of
Common Stock that will be held by the Selling Stockholders upon termination of
the offering. Except as noted below, no Selling Stockholder is a broker-dealer
or an affiliate of a broker-dealer.
As of March 7, 2008, there were 75,056,375 shares of Common Stock
outstanding.
Maximum
Shares Beneficially Number of
Owned(1) Shares to be
----------------------------------- Sold
Name Number Percentage Hereunder(2)
----------------------------------- -------------------- -------------- ---------------
Clark Wingert 500,000(3) * 500,000
Michael McMahon 125,000(4) * 125,000
Cary Moscarello 125,000(5) * 125,000
Ralph and Nancy Cotton 31,250(6) * 31,250
Marlene McGuire 62,500(7) * 62,500
Carl J. Sagasser Living Trust 375,000(8) * 375,000
Lee and Kay Bettenhausen 187,500(9) * 187,500
Zev and Pam Davis 625,000(10) * 625,000
John Majic 625,000(11) * 625,000
Ryan Schiff 125,000(12) * 125,000
Philip Trast 125,000(13) * 125,000
Paul Zeedyk 250,000(14) * 250,000
William and Christine Geiger 250,000(15) * 250,000
Richard and Annette Crawford 125,000(16) * 125,000
Jeff and Kim Clymer 125,000(17) * 125,000
Peter D. Kochanowski 125,000(18) * 125,000
Paul Werner 62,500(19) * 62,500
Patrick J. Monahan Revocable Trust 31,250(20) * 31,250
Wallace and Sharon Clark 250,000(21) * 250,000
Walter Jakovcic 250,000(22) * 250,000
Joseph Laura 375,000(23) * 375,000
24
|
John and Alisa Peragine 125,000(24) * 125,000
Jerry Schwartz 312,500(25) * 312,500
Greg Fresca 31,250(26) * 31,250
Frank Fresca 125,000(27) * 125,000
Martin Hodds 187,500(28) * 187,500
Stephen Phillips 1,187,500(29) 1.6% 1,187,500
Kyle McKenzie 125,000(30) * 125,000
Scott and Jolene McPherson 125,000(31) * 125,000
Kenneth and Tammy Balatgek 125,000(32) * 125,000
CKS Warehouse Group 187,500(33) * 187,500
Harry and Carol Heller 250,000(34) * 250,000
Billy Knott 625,000(35) * 625,000
Cleco Corp. 875,000(36) 1.2% 875,000
J.W. Harman 125,000(37) * 125,000
Alan Axelrod 281,250(38) * 281,250
Endevour L.P. 250,000(39) * 250,000
Jerome Gildner 125,000(40) * 125,000
Marvin Mauel 187,500(41) * 187,500
JP Turner & Company, LLC 1,200,000(42) 1.6% 1,200,000
David Dabney 85,000(43) * 85,000
Paradigm Group II, LLC 1,100,000(44) 1.5% 1,100,000
Willow Cove 106,875 * 106,875
Chalmers & Nagel, P.C. 35,625(45) * 35,625
Richard Wexler 142,500 * 142,500
Hari-Anne Felder 70,000 * 70,000
|
* Less than one percent.
(1) Except as otherwise indicated, each Selling Stockholder named in the table
has sole voting and investment power with respect to all shares of common stock
beneficially owned by such shareholder. The numbers and percentages shown
include (a) the shares of common stock actually owned as of March 7, 2008, and
(b) the shares of common stock which the person or group had the right to
acquire within 60 days upon the exercise of warrants held by such Selling
Stockholder on March 7, 2008. In calculating the percentage of ownership, all
shares of common stock that the identified person or group had the right to
acquire within 60 days upon the exercise of warrants held by such Selling
Stockholder are deemed to be outstanding for the purpose of computing the
percentage of the shares of common stock owned by such person or group, but are
not deemed to be outstanding for the purpose of computing the percentage of the
shares of common stock owned by any other person or group.
(2) Includes 1,250,000 shares issuable upon exercise of warrants at $1.00 per
share and 2,000,000 shares issuable upon exercise of warrants at $1.20 per
share.
(3) Includes 100,000 shares issuable upon exercise of warrants at $1.20 per
share.
(4) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share. (5) Includes 25,000 shares issuable upon exercise of warrants at $1.20
per share.
25
(6) Includes 6,250 shares issuable upon exercise of warrants at $1.20 per share.
(7) Includes 12,500 shares issuable upon exercise of warrants at $1.20 per
share.
(8) Includes 75,000 shares issuable upon exercise of warrants at $1.20 per
share. Carl J. Sagasser has sole voting and investment control over the shares
held by Carl J. Sagasser Living Trust.
(9) Includes 37,500 shares issuable upon exercise of warrants at $1.20 per
share.
(10) Includes 125,000 shares issuable upon exercise of warrants at $1.20 per
share.
(11) Includes 125,000 shares issuable upon exercise of warrants at $1.20 per
share.
(12) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(13) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(14) Includes 50,000 shares issuable upon exercise of warrants at $1.20 per
share.
(15) Includes 50,000 shares issuable upon exercise of warrants at $1.20 per
share.
(16) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(17) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(18) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(19) Includes 12,500 shares issuable upon exercise of warrants at $1.20 per
share.
(20) Includes 6,250 shares issuable upon exercise of warrants at $1.20 per
share. Patrick J. Monahan has sole voting and investment control over the shares
held by Patrick J. Monahan Revocable Trust.
(21) Includes 50,000 shares issuable upon exercise of warrants at $1.20 per
share.
(22) Includes 50,000 shares issuable upon exercise of warrants at $1.20 per
share.
(23) Includes 75,000 shares issuable upon exercise of warrants at $1.20 per
share.
(24) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(25) Includes 62,500 shares issuable upon exercise of warrants at $1.20 per
share.
(26) Includes 6,250 shares issuable upon exercise of warrants at $1.20 per
share.
(27) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(28) Includes 37,500 shares issuable upon exercise of warrants at $1.20 per
share.
(29) Includes 237,500 shares issuable upon exercise of warrants at $1.20 per
share.
(30) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(31) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(32) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share. (33) Includes 37,500 shares issuable upon exercise of warrants at $1.20
per share. Mark Hershhorn has sole voting and investment control over the shares
held by CKS Warehouse Group.
(34) Includes 50,000 shares issuable upon exercise of warrants at $1.20 per
share. (35) Includes 125,000 shares issuable upon exercise of warrants at $1.20
per share. J.W. Harman has sole voting and investment control over the shares
held by Cleco Corp.
(36) Includes 175,000 shares issuable upon exercise of warrants at $1.20 per
share.
(37) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(38) Includes 56,250 shares issuable upon exercise of warrants at $1.20 per
share. (39) Includes 50,000 shares issuable upon exercise of warrants at $1.20
per share. John F. Maring has sole voting and investment control over the shares
held by Endevour L.P.
(40) Includes 25,000 shares issuable upon exercise of warrants at $1.20 per
share.
(41) Includes 37,500 shares issuable upon exercise of warrants at $1.20 per
share.
(42) Represents 1,200,000 shares issuable upon exercise of warrants at $1.00 per
share. JP Turner & Company, LLC is a registered broker dealer and NASD member
firm, located at 3060 Peachtree Road, 11th Floor, Atlanta, Georgia 30305. JP
Turner & Company, LLC acted as a placement agent in connection with our offering
of common stock and warrants in March 2007. All of the shares being registered
were received by JP Turner & Company, LLC as compensation for investment banking
services. JP Turner & Company, LLC distributed such warrants to JP Turner
Partners, LP, an associated entity. William L. Mello has sole voting and
investment control over shares held by JP Turner Partners, LP.
(43) Includes 50,000 shares issuable upon exercise of warrants at $1.00 per
share.
(44) Includes 220,000 shares issuable upon exercise of warrants at $1.20 per
share. Sheldon Drobny has sole voting and investment control over the shares
held by Paradigm Group II, LLC.
(45) Stuart M. Nagel has sole voting and investment control over the shares held
by Chalmers & Nagel, P.C.
26
PLAN OF DISTRIBUTION
The selling stockholders (the "Selling Stockholders", which as used herein
includes donees, pledgees, transferees or other successors-in-interest of a
Selling Stockholder selling shares of Common Stock or interests in shares of
Common Stock received after the date of this prospectus from a Selling
Stockholder as a gift, pledge, partnership distribution or other transfer) may,
from time to time, sell, transfer or otherwise dispose of any or all of their
shares of Common Stock or interests in shares of Common Stock on any stock
exchange, market or trading facility on which the shares are traded or in
private transactions. These dispositions may be at fixed prices, at prevailing
market prices at the time of sale, at prices related to the prevailing market
price, at varying prices determined at the time of sale, or at negotiated
prices.
The Selling Stockholders may use any one or more of the following methods
when disposing of shares or interests therein:
- 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;
- short sales effected after the date the registration statement of which
this Prospectus is a part is declared effective by the SEC;
- through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise;
- broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share; and
- a combination of any such methods of sale.
The Selling Stockholders may, from time to time, pledge or grant a security
interest in some or all of the shares of Common Stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell the shares of Common Stock, from time to time, under
this Prospectus, or under an amendment to this Prospectus under Rule 424(b)(3)
or other applicable provision of the 1933 Act amending the list of Selling
Stockholders to include the pledgee, transferee or other successors-in-interest
as Selling Stockholders under this Prospectus. The Selling Stockholders also may
transfer the shares of Common Stock in other circumstances, in which case the
transferees, pledgees or other successors-in-interest will be the selling
beneficial owners for purposes of this Prospectus.
27
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. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
J.P. Turner & Company, LLC ("JP Turner") has indicated to us its
willingness to act as selling agent on behalf of the Selling Stockholders named
in the Prospectus under "Selling Security Holders" that purchased our privately
placed securities. All shares sold, if any, on behalf of Selling Stockholders by
JP Turner would be in transactions executed by JP Turner on an agency basis and
commissions charged to its customers in connection with each transaction shall
not exceed a maximum of 5% of the gross proceeds. JP Turner does not have an
underwriting agreement with us and/or the Selling Stockholders and no Selling
Stockholders are required to execute transactions through JP Turner.
In connection with the sale of our 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 our 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 will receive the aggregate proceeds from the sale
of the Common Stock offered by them. The aggregate proceeds to the Selling
Stockholders from the sale of the Common Stock offered by them will be the
purchase price of the Common Stock less discounts or commissions, if any. Each
of the Selling Stockholders reserves the right to accept and, together with
their agents from time to time, to reject, in whole or in part, any proposed
purchase of Common Stock to be made directly or through agents. We will not
receive any of the proceeds from the sale of Common Stock in this offering. We
may receive proceeds from holders who exercise their warrants and pay the
applicable cash exercise price in connection with those exercises.
The Selling Stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the 1933 Act rather
than under this Prospectus, provided that they meet the criteria and conform to
the requirements of that rule.
The Selling Stockholders and any underwriters, broker-dealers or agents
that participate in the sale of the Common Stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the 1933 Act. Any
discounts, commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the 1933 Act. Selling
Stockholders who are "underwriters" within the meaning of Section 2(11) of the
1933 Act will be subject to the prospectus delivery requirements of the 1933
Act.
28
To the extent required, the shares of our common stock to be sold, the
names of the Selling Stockholders, the respective purchase prices and public
offering prices, the names of any agent, dealer or underwriter, any applicable
commissions or discounts with respect to a particular offer will be set forth in
an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this Prospectus.
In order to comply with the securities laws of some states, if applicable,
the Common Stock may be sold in these jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the Common Stock may
not be sold unless it has been registered or qualified for sale or an exemption
from registration or qualification requirements is available and is complied
with.
We have advised the Selling Stockholders that the anti-manipulation rules
of Regulation M under the 1934 Act may apply to sales of shares in the market
and to the activities of the Selling Stockholders and their affiliates. In
addition, we will make copies of this Prospectus (as it may be supplemented or
amended from time to time) available to the Selling Stockholders for the purpose
of satisfying the prospectus delivery requirements of the 1933 Act. The Selling
Stockholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares of Common Stock against certain liabilities,
including liabilities arising under the 1933 Act.
We will pay all of the expenses incident to registration other than
commissions, fees and discounts of underwriters, brokers, dealers and agents. We
will pay for offering expenses including the SEC registration fee, accounting
fees, legal fees, printing expenses and other related miscellaneous expenses. We
have agreed to indemnify the Selling Stockholders against liabilities, including
liabilities under the 1933 Act and state securities laws, relating to the
registration of the shares offered by this Prospectus.
We have agreed with the Selling Stockholders to keep the registration
statement of which this Prospectus constitutes a part effective until the
earlier of (1) such time as all of the shares covered by this Prospectus have
been disposed of pursuant to and in accordance with the registration statement
or (2) the date on which the shares may be sold pursuant to Rule 144(k) of the
1933 Act. Notwithstanding anything contained herein to the contrary, an
aggregate of 1,200,000 shares of Common Stock issuable upon exercise of warrants
held by JP Turner and/or "associated persons" of JP Turner are subject to a 180
day lock-up agreement in accordance with the requirements of NASD Rule
2710(g)(1).
LEGAL MATTERS
The validity of the Common Stock registered hereunder has been passed
upon for us by Epstein Becker & Green, P.C., Chicago, Illinois.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-KSB for the Year ended December 31, 2006 have been
so incorporated in reliance on the report of Spector & Wong LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the Commission will automatically update and supersede that information. We
incorporate by reference the documents filed with the Commission listed below:
(a) Our Annual Report on Form 10-KSB for the year ended December 31, 2006;
(b) Our Quarterly Report on Form 10-QSB filed with the SEC on May 9, 2007,
and ammended on November 16, 2007;
(c) Our Quarterly Report on Form 10-QSB filed with the SEC on August 14,
2007, and amended on November 16, 2007;
(d) Our Quarterly Report on Form 10-QSB filed with the SEC on November 16,
2007
(e) Our Current Reports on Form 8-K filed with the SEC on December 17,
2007, January 7, 2008, January 11, 2008, February 20, 2008, and February 28,
2008;
29
(f) The description of the common stock contained in our Registration
Statement on Form 10SB filed with the Commission on August 21, 2000,
together with each of Amendment No. 1 on Form 10SB/A filed with the
Commission on December 10, 2002, Amendment No. 2 on Form 10SB/A filed
with the Commission on January 7, 2002 and Amendment No. 3 on Form
10SB/A filed with the Commission on January 24, 2002 and including any
amendments or reports filed for the purpose of updating such
description in which there is described the terms, rights and
provisions applicable to our common stock; and
(g) All documents we have filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the
initial registration statement and prior to the effectiveness of the
registration statement, as well as subsequent to the date of this
prospectus and prior to the termination of this offering, shall be
deemed to be incorporated by reference into this prospectus and to be
a part of this prospectus from the date of the filing of the
documents.
You may request a copy of any one or more of these filings, at no cost, by
contacting us at:
Z Trim Holdings, Inc.
1011 Campus Drive
Mundelein, Illinois 60060
(847) 549-6002
30
WHERE YOU CAN GET MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). You
may read and copy any reports, statements or other information that we file with
the Commission at the Commission's public reference room at 100 F. St., N.E.,
Washington, D.C. 20549. Please call the Commission at 1-800-SEC-0330 for further
information on the public reference room. The Commission maintains a Web site at
"www.sec.gov" that contains reports, proxy and information statements and other
information regarding companies that file electronically with the Commission,
including Z Trim's.
You may also find copies of reports, proxy and information statements we
file electronically with the Commission via a link to "Investor Relations" from
our website at "www.ztrim.com." The information on our Internet Web site is not
incorporated in this prospectus by reference and you should not consider it a
part of this prospectus.
31
PROSPECTUS
Z TRIM HOLDINGS, INC.
12,740,000 SHARES OF COMMON STOCK
March 7, 2008
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information that is different
from that contained in this prospectus. We are offering to sell shares of common
stock and seeking offers to buy shares of common stock only in jurisdictions
where offers and sales are permitted. The information contained in this
prospectus is accurate only as of the date of this prospectus, regardless of the
time of delivery of this prospectus or of any sale of the common stock.
32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
We are not issuing any common stock under this Registration Statement. All
Common Stock registered pursuant to this Registration Statement is being
registered on behalf of Selling Stockholders. We have agreed to pay all costs of
this Registration Statement. The following table sets forth the estimated
expenses to be incurred in connection with the issuance and resale of the
securities offered by this prospectus. We are responsible for the payment of all
expenses set forth below.
Registration fee $ 447
Legal fees and expenses $ 15,000
Accounting fees and expenses $ 5,000
Miscellaneous $ 1,000
------------
Total $ 21,447
|
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's bylaws authorize the Company to indemnify directors and
officers and other corporate agents to the fullest extent permitted under the
laws of Illinois. Because indemnification of liabilities arising under the
Securities Act of 1933 may be permitted to our directors, officers or
controlling persons by these provisions or otherwise, we have been advised that
in the opinion of the Securities and Exchange Commission this 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
liabilities, other than the payment by us of expenses incurred or paid by one of
our directors, officers or controlling persons in the successful defense of any
action, suit or proceeding, is asserted by a 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
indemnification by us is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of the issue.
ITEM 16. EXHIBITS
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of Z Trim Holdings, Inc. under the Securities Act of 1933 or the
Securities Exchange Act of 1934 as indicated in parenthesis.
EXHIBIT
NO. DESCRIPTION
------- ------------------------------------------------------------------------
4.1 Form of Subscription Agreement (filed as Exhibit 4.5 to the Company's
Form 10-KSB filed on April 2, 2007 and incorporated herein by
reference).
4.2 Form of Warrant to Purchase Common Stock (filed as Exhibit 4.6 to the
Company's Form 10-KSB filed on April 2, 2007 and incorporated herein by
reference).
4.3 Form of Registration Rights Agreement (filed as Exhibit 4.7 to the
Company's Form 10-KSB filed on April 2, 2007 and incorporated herein by
reference).
5.1 Opinion of Epstein Becker & Green, P.C.
23.1 Consent of Spector and Wong, LLP
23.2 Consent of Epstein Becker & Green, P.C. (included in Exhibit 5.1)
|
33
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.
(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 percent 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) and (a)(1)(ii) do not appy if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic 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.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) 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) Insofar as indemnification for liabilities arising under the Securities Act
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
and is, therefore, unenforceable.
34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to be believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mundelein, State of Illinois, on March 7, 2008.
Z TRIM HOLDINGS, INC.
By: /s/ Steven J. Cohen
---------------------------
Steven J. Cohen
President (Principal Executive Officer)
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven J. Cohen as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
In accordance with the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed on March 7, 2008 by the
following persons in the capacities indicated.
/s/ Steven J. Cohen /s/ Mark Hershhorn
---------------------- ---------------------
Steven J. Cohen Mark Hershhorn
Director and President Director
(Principal Executive Officer)
/s/ Brian Chaiken /s/ Harvey Rosenfeld
------------------ --------------------
Brian Chaiken Harvey Rosenfeld
Chief Financial Officer Director
(Principal Accounting Officer)
/s/ Triveni Shukla /s/ Randal Hoff
------------------- -------------------
Triveni Shukla Randal Hoff
Director and Executive V.P. Director
/s/ Michael Donahue /s/ Brian S. Israel
------------------- -------------------
Michael Donahue Brian S. Israel
Director Director
|
INDEX OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- ------------------------------------------------------------------------
4.1 Form of Subscription Agreement (filed as Exhibit 4.5 to the Company's
Form 10-KSB filed on April 2, 2007 and incorporated herein by
reference).
4.2 Form of Warrant to Purchase Common Stock (filed as Exhibit 4.6 to the
Company's Form 10-KSB filed on April 2, 2007 and incorporated herein by
reference).
4.3 Form of Registration Rights Agreement (filed as Exhibit 4.7 to the
Company's Form 10-KSB filed on April 2, 2007 and incorporated herein by
reference).
5.1 Opinion of Epstein Becker & Green, P.C.
23.1 Consent of Spector and Wong, LLP
23.2 Consent of Epstein Becker & Green, P.C. (included in Exhibit 5.1)
|
35
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