UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) or 12(g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
NEW
GENERATION BIOFUELS HOLDINGS, INC..
(Exact
name of Registrant as specified in its charter)
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Florida
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26-0067474
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(State
of Incorporation)
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(I.R.S.
Employer
Identification
No.)
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11111
Katy Freeway, Suite 910
Houston,
Texas 77079
(Address
of principal executive offices, including Zip Code)
Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of each class to be so registered
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Name
of each exchange of which each class is to be
registered
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Common
stock, par value of $0.001
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American
Stock Exchange
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If
this
form relates to the registration of a class of securities pursuant to Section
12(b) of the Exchange Act and is effective pursuant to General Instruction
A(c),
check the following box.
x
If
this
form relates to the registration of a class of securities pursuant to Section
12(g) of the Exchange Act and is effective pursuant to General Instruction
A(d),
check the following box.
o
Securities
Act registration statement file number to which this form relates:
Securities
to be registered pursuant to Section 12(g) of the Act:
Not
Applicable
(Title
of
Class)
Item
1. Description of Registrant’s Securities to be
Registered.
The
following information sets forth the capital stock of New Generation Biofuels
Holdings, Inc. Until March 28, 2008, we were named H2Diesel Holdings, Inc.
Our
authorized capital stock consists of 110,000,000 shares, of which 100,000,000
shares are designated as common stock, par value $0.001 per share, and
10,000,000 shares are designated as preferred stock, par value $0.001 per
share. Of the preferred stock, 300,000 shares have been designated as
Series A cumulative convertible preferred stock and 250,000 shares have been
designated as Series B cumulative convertible preferred stock. As of March
31,
2008, there were issued and outstanding:
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18,285,964
shares of common stock;
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39,550
shares of Series A preferred stock;
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43,990 shares
of Series B preferred stock; and
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warrants
and non-employee options to purchase 5,004,088 shares of common stock
at a weighted average per share exercise price of
$4.70.
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The
following summary of the material provisions of our common stock, preferred
stock, warrants, is qualified by reference to the provisions of our Amended
and
Restated Articles of Incorporation and Amended Bylaws and the form of warrants
included or incorporated by reference as exhibits to the registration statement
of which this prospectus is a part.
Common
Stock
Holders
of our common stock are entitled to one vote for each share on all matters
submitted to a shareholder vote. Holders of common stock do not have
cumulative voting rights. Therefore, holders of a majority of the shares of
common stock voting for the election of directors can elect all of the
directors. Holders of our common stock representing a majority of the voting
power of our capital stock issued and outstanding and entitled to vote,
represented in person or by proxy, are necessary to constitute a quorum at
any
meeting of our shareholders. A vote by the holders of a majority of our
outstanding shares is required to effectuate certain fundamental corporate
changes such as liquidation, merger or an amendment to our Amended and Restated
Articles of Incorporation.
Holders
of common stock are entitled to share in all dividends that the board of
directors, in its discretion, declares upon the common stock from legally
available funds, subject to any preferential rights. In the event of a
liquidation, dissolution or winding up, each outstanding share entitles its
holder to participate pro rata in all assets that remain after payment of
liabilities and after providing for each class of stock, if any, having
preference over the common stock. Holders of our common stock have no
pre-emptive rights, no conversion rights and there are no redemption provisions
applicable to our common stock.
Series
A Cumulative Convertible Preferred Stock
Optional
and Mandatory Conversion
.
At
any time prior to the third anniversary of the initial date of issuance and
until the payment in full of the “liquidation value” in respect of a holder’s
shares of Series A Preferred Stock, any Holder of Series A Preferred Stock
may
convert all or a portion of such shares into a number of shares of our common
stock calculated by multiplying the number of shares to be converted by such
shares’ “stated value” (
i.e
,
$100
per share plus the amount of all dividends accumulated thereon) and dividing
the
result by the “conversion price” then in effect. The initial
conversion price of each share of Series A Preferred Stock is $4.00 and each
share of Series A Preferred Stock is initially convertible into 25 shares of
our
common stock. Upon such third anniversary, each share of Series A
Preferred Stock shall automatically, and without any action on the part of
the
holder, convert into that number of shares of our common stock computed by
dividing such share’s “stated value” by the “conversion price” then in
effect. The “conversion price” is subject to adjustment upon the
occurrence of certain events, including, among others, a stock split, reverse
stock split, stock dividend or combination of our common stock.
Liquidation
Rights
.
Upon
any
liquidation of the Company, the holders of the Series A Preferred Stock will
be
entitled to be paid, prior to the common stock or any other securities that
by
their terms are junior to the Series A Preferred Stock (collectively with the
common stock, “Junior Securities”), the original issue price of the Series A
Preferred Stock plus all accrued and unpaid dividends. To the extent the
proceeds of liquidation are insufficient to pay such amounts in full, the
proceeds available will be allocated pro rata among the shares of Series A
Preferred Stock.
Dividends.
Each
share of Series A Preferred Stock will accrue cumulative dividends on a
quarterly basis at a rate of 8% per year. All dividends will be paid
in shares of common stock having a fair market value at the time of issuance
equal to the amount of dividends to be paid, provided that to the extent the
shares of common stock to be issued are not then registered under the
Registration Rights Agreement, dividends shall cumulate but shall remain unpaid
until such time as the shares are registered and issued. We may elect
to pay any dividends in cash in lieu of issuing shares of common
stock. The Series A Preferred Stock shall also participate on an
as−converted basis with all dividends paid on the shares of common
stock.
Reorganization,
Reclassification, Consolidation, Merger or Sale.
Prior
to the consummation of any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of our assets or other
transaction, in each case which is effected in such a manner that the holders
of
common stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
common stock (any such transaction an “Organic Change”), the Company shall make
appropriate provisions to ensure that each of the holders of Series A Preferred
Stock shall thereafter have the right to acquire and receive, in lieu of or
in
addition to (as the case may be) the shares of common stock immediately
theretofore acquirable and receivable upon the conversion of such holder’s
Series A Preferred Stock, such shares of stock, securities or assets as such
holder would have received in connection with such Organic Change if such holder
had converted its Series A Preferred Stock immediately prior to such Organic
Change.
Voting
Rights.
Holders
of Series A Preferred Stock shall be entitled to notice of all stockholders’
meetings in accordance with our bylaws and shall be entitled to vote on all
matters submitted to the stockholders for a vote together with the holders
of
common stock voting together as a single class with each share of common stock
entitled to one vote per share and each share of Series A Preferred Stock
entitled to one vote for each share of common stock issuable upon conversion
of
the Series A Preferred Stock as of the record date for such vote or, if no
record date is specified, as of the date of such vote.
No
Redemption.
The
Series A Preferred Stock may not be redeemed by us at any time. The
Series A Preferred Stock is not redeemable. Any shares of Series A Preferred
Stock which are otherwise acquired by us will be cancelled and will not be
reissued, sold or transferred.
Series
B Cumulative Convertible Preferred Stock
Each
share of Series B Preferred Stock initially will be convertible into shares
of
our Common Stock, at a conversion price of $4.25 per share. The Series B
Preferred Stock also includes the following key terms:
Ranking.
The
Series B Preferred Stock will rank junior to the Series A Preferred Stock and
senior to the Common Stock with respect to the payment of dividends and amounts
payable upon liquidation, dissolution or winding up of the Company.
Dividends
and Increase in Stated Value.
Dividends
will be payable from the date of issuance at a rate of 8% per year when and
as
declared by the Board of Directors. To the extent that dividends are not
declared, or cannot be paid, there will be an increase in the Stated Value
of
the Series B Preferred Stock in the amount of 8% per year. In the event
dividends are declared by the Board and paid by the Company on the Common Stock,
holders of Series B Preferred Stock will either share ratably in such dividends
based on the number of shares of Common Stock into which the Series B Preferred
Stock may be converted or (to the extent that dividends are not declared or
cannot be paid), there will be a corresponding increase in the Stated Value.
Dividends will be paid semiannually, at the Company’s election, in cash, in
shares of Series B Preferred Stock (valued at Stated Value) or in Common Stock
valued at the market price, on September 30 and March 31 of each year beginning
on September 30, 2008 to holders of record on the 15
th
day of
the preceding month. If there is an increase in Stated Value because dividends
were not or could not be paid, that increase will occur semiannually on the
dates that dividends would have been paid.
Liquidation.
Upon
any
Liquidation of the Company, after the Company has made the required
distributions to the holders of Series A Preferred Stock (and any other
preferred stock then outstanding, if any, ranking in liquidation senior to
the
Series B Preferred Stock), and before any distribution is made to the holders
of
Common Stock (and any other stock ranking in liquidation junior to the Series
B
Preferred Stock), the holders of Series B Preferred Stock will be entitled
to be
paid an amount in cash equal to the aggregate liquidation value of Series B
Preferred Stock, which equals the Stated Value plus all accrued dividends not
previously paid or added to Stated Value.
Redemption.
The
Series B Preferred Stock is not redeemable.
Voting.
The
holders of the Series B Preferred Stock will be entitled to notice of all
shareholders’ meetings and will be entitled to vote on all matters submitted to
the shareholders for a vote, together with the holders of Series A Preferred
Stock on an as-converted basis and the Common Stock, voting together as a single
class. Each share of Series B Preferred Stock will be entitled to one vote
for
each share of Common Stock issuable upon conversion of the Series B Preferred
Stock as of the record date for such vote or, if no record date is specified,
as
of the date of such vote.
Automatic
Conversion.
Upon
the
third anniversary of the initial issue date of the Series B Preferred Stock,
each share of Series B Preferred Stock will automatically convert into the
number of shares of Common Stock into which it is then convertible. That number
is determined by dividing the sum of the Stated Value and all accrued dividends
not previously paid or added to the Stated Value to the date of such conversion
by the Conversion Price then in effect. The conversion price is $4.25 per share,
subject to adjustment upon the occurrence of certain major corporate events
such
as reorganizations and stock splits (the “Conversion Price”).
Optional
Conversion.
At
any
time, any holder of Series B Preferred Stock may convert all or a portion of
their shares. The number of shares of Common Stock into which each share of
Series B Preferred Stock is convertible is determined by dividing the sum of
the
Stated Value and all accrued dividends not previously paid or added to the
Stated Value to the date of such conversion by the Conversion Price then in
effect.
Antidilution
and Adjustments to Conversion Price.
If
at any
time prior to the first to occur of (i) the first anniversary of the
registration of the common stock underlying the Series B Preferred Stock or
(ii)
18 months after the closing , the Company issues any additional shares of Common
Stock with a purchase price less than the Conversion Price of the Series B
Preferred Stock, or additional convertible securities with a conversion price
less than the Conversion Price of the Series B Preferred Stock, the Conversion
Price of the Series B Preferred Stock will be reduced to the purchase price
at
which such Common Stock has been issued or the conversion price of such
additional convertible securities, but not below a Conversion Price of $3.00
per
share.
Protective
Provisions.
The
Company will not, without approval of a majority of the holders of the shares
of
the Series B Preferred Stock voting as a separate class;
(a) alter
or change the rights, preferences or privileges of the Series B Preferred Stock
or any other class or series of preferred stock in any manner adversely
affecting the rights of the Series B Preferred Stock;
(b) create
or issue any new class or series of equity securities of the Company having
a
preference senior to the Series B Preferred Stock with respect to redemption,
voting, liquidation or dividend rights;
(c) pay
or declare any dividend on or other distribution with respect to any shares
of
the Company’s capital stock which are junior to the Series B Preferred Stock
(except dividends payable solely in shares of Common Stock or in the junior
preferred stock); or
(d) redeem
or acquire any shares of the Company’s capital stock which are junior to the
Series B Preferred Stock (other than Common Stock from employees, officers
or
directors of the Company or its subsidiaries upon termination of employment
pursuant to the terms of agreements approved by the Company’s board of directors
or Common Stock from any affiliate of the Company (which for this purpose shall
include any holder of 10% or more of the Common Stock or other voting stock
of
the Company)) or any strategic partner of the Company).
Reorganization,
Consolidation, Merger or Sale.
Prior
to
any recapitalization, reorganization, reclassification, consolidation, merger,
sale of all or substantially all of the Company’s assets or other transaction
where the holders of Common Stock are entitled to receive (either directly
or
upon subsequent liquidation) stock, securities or assets with respect to or
in
exchange for Common Stock (an “Organic Change”), the Company will make
appropriate provision to ensure that the holders of Series B Preferred Stock
will have the right to acquire and receive, upon the conversion of Series B
Preferred Stock, in lieu of Common Stock, such shares of stock, securities
or
assets as such holder would have received in connection with such Organic Change
if such holder had converted its Series B Preferred Stock immediately prior
to
such Organic Change.
Warrants
As
of
March 31, 2008, there are warrants and non-employee options to purchase
5,004,088 shares of common stock at a weighted average per share exercise price
of $4.70. Such warrants and non-employee options expire between 2009 and
2013.
As
part
of the October 2006 private placement, we issued warrants to purchase 251,500
shares of our common stock at a weighted average price of $1.50 per
share. Such warrants expire during 2011.
As
part
of the May/June 2007 private placement, we issued warrants to purchase up to
589,875 shares of our common stock at an initial exercise price of $6.00 per
share. Such warrants expire during 2012.
As
a part
of the December 2007 private placement, we issued warrants to purchase up to
887,143 shares of our common stock at an initial exercise price of $5.25 per
share. Such warrants expire during 2012.
As
part
of the March 2008 private placement, we issued warrants to purchase up
to 353,498 shares of our common stock at an initial price of $6.25 per
share. Such warrants expire during 2013.
If
at any
time prior to the first anniversary of the registration of the common stock
underlying the warrants or eighteen months from the date of closing, the Company
issues certain additional equity securities with a purchase price or conversion
price less than $4.25 per share of Common Stock or any additional warrants
with
an exercise price less than $6.25 per share, the exercise price of the Warrant
will be reduced to the purchase price or the conversion price of the additional
equity securities or to the exercise price of the additional warrants, but
not
below $3.00 per share.
Item
2. Exhibits
The
exhibits required to be filed as part of this Registration Statement on Form
8-A
are listed in the Exhibit Index attached hereto. Such exhibits are incorporated
by reference pursuant to Rule 12b-32:
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Exhibit
No.
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Exhibit
Description
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3.1
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Amended
and Restated Articles of Incorporation (incorporated by reference
to
Exhibit 3.1 to the Annual Report on Form 10-K filed March 31,
2008).
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3.2
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Articles
of Amendment to the Articles of Incorporation relating to our Series
B
Convertible Preferred Stock (incorporated by reference to Exhibit
3.2 to
the Annual Report on Form 10-K filed March 31, 2008).
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3.3
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Amended
and Restated Bylaws, dated March 5, 2008 (incorporated by reference
to
Exhibit 3.3 to the Annual Report on Form 10-K filed March 31,
2008).
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4.1
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Form
of Warrant (incorporated by reference to Exhibit 4.1 to the Annual
Report
on Form 10-K filed March 31, 2008).
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4.2
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Form
of $6.00 Warrant (incorporated by reference to Exhibit 4.2 to the
Annual
Report on Form 10-K filed March 31, 2008).
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4.3
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Form
of $5.25 Warrant(incorporated by reference to Exhibit 4.3 to the
Annual
Report on Form 10-K filed March 31, 2008).
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4.4
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Form
of $6.25 Warrant (incorporated by reference to Exhibit 4.4 to the
Annual
Report on Form 10-K filed March 31,
2008).
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SIGNATURES
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
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NEW
GENERATION BIOFUELS HOLDINGS, INC.
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Date:
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April
14, 2008
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By:
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/s/
Lee S. Rosen
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Lee
S. Rosen, Chairman of the Board of
Directors
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New Gen Biofuels (AMEX:GNB)
Gráfica de Acción Histórica
De May 2024 a Jun 2024
New Gen Biofuels (AMEX:GNB)
Gráfica de Acción Histórica
De Jun 2023 a Jun 2024
