New Generation Biofuels Holdings, Inc - Amended Annual Report (10-K/A)
July 25 2008 - 1:49PM
Edgar (US Regulatory)
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
________________
Form 10-K/A
Amendment
No. 1
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
For
the fiscal year ended December 31, 2007
Commission
File No. 001-34022
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
of Incorporation)
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(I.R.S.
Employer Identification No.)
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1000
Primera Boulevard
Lake
Mary, Florida 32746
(Address
of Principal Executive Offices, Including Zip Code)
(443)
535-8660
(Registrant’s
Telephone Number, Including Area Code)
Securities
Registered Pursuant to Section 12(b) of the Act:
(Title
of Each Class)
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(Name
of Exchange on Which Registered)
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Common
Stock, par value $.001 per share
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American
Stock Exchange
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Securities
Registered Pursuant to Section 12(g) of the Act:
None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined
in
Rule 405 of the Securities Act.
£
Yes
R
No
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act.
£
Yes
R
No
Indicate
by check mark whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
R
Yes
£
No
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the
best of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
£
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.
£
Large
accelerated filer
£
Accelerated
filer
£
Non-accelerated
filer
R
Smaller reporting company
Indicate
by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act).
£
Yes
R
No
The
aggregate market value of the Registrant’s Common Stock, par value
$0.001 per share, held by nonaffiliates of the Registrant, as of June 30,
2007, was $40,423,500.
As
of
March 14, 2008, the number of shares of the Registrant’s Common Stock, par value
$0.001 per share, outstanding was 18,285,964.
DOCUMENTS
INCORPORATED BY REFERENCE: None
EXPLANATORY
NOTE
We
are
filing this Amendment No. 1 to our Annual Report on Form 10-K for the fiscal
year ended December 31, 2007 (“2007 10-K”) for the purpose of filing Exhibit
10.30 that was inadvertently excluded from the original filing. This amendment
does not update or modify in any way other disclosures in our 2007 10-K and
does
not reflect events occurring after the original filing date of March 31,
2008.
SIGNATURES
In
accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934,
the
Company has caused this report 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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By:
/s/
David A. Gillespie
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David
A. Gillespie
President
and Chief Executive Officer
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Date:
July
24, 2008
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Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has
been
signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
SIGNATURE
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TITLE
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DATE
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/s/
David A. Gillespie
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President,
Chief Executive Officer and Director
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July
24, 2008
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David
A. Gillespie
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(Principal
Executive Officer)
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/s/
Cary J. Claiborne
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Chief
Executive Financial Officer
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July
24, 2008
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Cary
J. Claiborne
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(Principal
Financial and Accounting Officer)
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/s/
Lee S. Rosen*
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Chairman
of the Board
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Lee
S. Rosen
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/s/
Phillip E. Pearce*
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Director
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Phillip
E. Pearce
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/s/
John E. Mack*
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Director
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John
E. Mack
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/s/
James R. Sheppard, Jr.*
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Director
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James
R. Sheppard, Jr.
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/s/
Steven F. Gilliland*
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Director
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Steven
F. Gilliland
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*By:
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/s/
David A. Gillespie
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David
A. Gillespie,
Attorney-in-Fact
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EXHIBIT
INDEX
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 Current Report on Form 8-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 Current Report on Form 8-K, filed March 31, 2008).
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3.3†
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Amended
and Restated Bylaws, dated March 5, 2008.
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4.1
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Form
of Warrant (incorporated by reference to Exhibit 4.1 to the Current
Report
on Form 8-K filed October 26, 2006).
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4.2†
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Form
of $6.00 Warrant.
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4.3†
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Form
of $5.25 Warrant.
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4.4
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Form
of $6.25 Warrant (incorporated by reference to Exhibit 4.1 to
the Current
Report on 8-K filed March 31, 2008).
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10.1
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Exclusive
License Agreement dated as of March 20, 2006 between H2Diesel,
Inc. and
Ferdinando Petrucci (incorporated by reference to Exhibit 10.1
to the
Current Report on Form 8-K filed October 26,
2006).
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10.2
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Amendment
#1, dated September 11, 2006, to the Exclusive License Agreement
between
H2Diesel, Inc. and Ferdinando Petrucci (incorporated by reference
to
Exhibit 10.2 to the Current Report on Form 8-K filed October 26,
2006).
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10.3
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Amendment
#2, dated December 13, 2006, to the Exclusive License Agreement
dated
March 20, 2006, as amended, between H2Diesel, Inc. and Ferdinando
Petrucci
(incorporated by reference to Exhibit 10.1 to the Current Report
on Form
8-K filed December 15, 2006).
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10.4
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Amendment
#3, dated November 3, 2007, to the Exclusive License Agreement
dated March
20, 2006, as amended, between H2Diesel, Inc. and Ferdinando Petrucci
(incorporated by reference to Exhibit 10.3 to the Quarterly Report
on Form
10-QSB filed November 14, 2007).
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10.5
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Amendment
#4, dated November 9, 2007, to the Exclusive License Agreement
dated March
20, 2006, as amended, between H2Diesel, Inc. and Ferdinando Petrucci
(incorporated by reference to Exhibit 10.4 to the Quarterly Report
on Form
10-QSB filed November 14, 2007).
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10.6
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Amendment
#5, dated February 20, 2008, to the Exclusive License Agreement
dated
March 20, 2006, as amended, between H2Diesel, Inc. and Ferdinando
Petrucci
(incorporated by reference to Exhibit 10.1 to the Current Report
on Form
8-K filed February 25, 2008).
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10.7†
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Amendment
#6, dated March 25 , 2008, to the Exclusive License Agreement
dated March
20, 2006, as amended, between H2Diesel, Inc. and Ferdinando Petrucci.
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10.8
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Sublicense
Agreement dated as of April 14, 2006 (as amended and restated
on June 15,
2006) between H2Diesel, Inc. and Xethanol Corporation (incorporated
by
reference to Exhibit 10.3 to the Current Report on Form 8-K filed
October 26, 2006).
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10.9
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Technology
Access Agreement dated as of June 15, 2006 between H2Diesel,
Inc. and
Xethanol Corporation (incorporated by reference to Exhibit 10.4
to the
Current Report on Form 8-K filed October 26, 2006).
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10.10
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Registration
Rights Agreement dated October 16, 2006 between H2Diesel, Inc.
and
Xethanol Corporation (incorporated by reference to Exhibit 10.9
to the
Current Report on Form 8-K filed October 26, 2006).
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10.11
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Stock
Purchase and Termination Agreement, dated as of October 5, 2007,
by and
among H2Diesel Holdings, Inc., H2Diesel, Inc. and Xethanol Corporation
(incorporated by reference to Exhibit 10.1 to the Current Report
on Form
8-K filed October 10, 2007).
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10.12
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Amendment
No. 1 dated November 13, 2007, to the Stock Purchase and Termination
Agreement, dated October 5, 2007 between Xethanol Corporation
and the
Company (incorporated by reference to Exhibit 10.2 to the
Quarterly
Report on Form 10-QSB filed November 14, 2007).
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10.13†*
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Omnibus
Incentive Plan adopted November 14, 2007.
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10.14†
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Form
of Director Non-Qualified Stock Option Agreement under Omnibus
Incentive
Plan.
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10.15†
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Form
of Non-Qualified Stock Option Agreement under Omnibus Incentive
Plan.
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10.16†
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Form
of Incentive Stock Option Agreement under Omnibus Incentive
Plan.
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10.17†
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Form
of Restricted Stock Agreement under Omnibus Incentive
Plan.
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10.18†
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Office
Lease Agreement, dated as of March 12, 2008, by and between Central
Florida Educators’ Federal Credit Union and H2Diesel Holdings,
Inc.
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10.19
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Employment
Agreement dated as of October 18, 2006 between David A. Gillespie
and
H2Diesel, Inc. (incorporated by reference to Exhibit 10.5 to the
Current
Report on Form 8-K filed October 26, 2006).
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10.20*
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Employment
Agreement dated as of May 5, 2006 between Lee S. Rosen and H2Diesel,
Inc.
(incorporated by reference to Exhibit 10.6 to the Current Report
on Form
8-K filed October 26, 2006).
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10.21*
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Amended
and Restated Employment Agreement dated as of September 19, 2006,
between
Andrea Festuccia and H2Diesel, Inc. (incorporated by reference
to Exhibit
10.7 to the Current Report on Form 8-K filed October 26,
2006).
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10.22*
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Amended
and Restated Employment Agreement dated as of December 18, 2007
between
Cary J. Claiborne and H2Diesel, Holdings, Inc. (incorporated by
reference
to Exhibit 10.1 to the Current Report on Form 8-K filed January 11,
2008).
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10.23
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Form
of Registration Rights Agreement (incorporated by reference to
Exhibit
10.8 to the Current Report on Form 8-K filed October 26,
2006).
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10.24
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Form
of Registration Rights Agreement for May/June (incorporated by
reference
to Exhibit 10.3 to the Quarterly Report on Form 10-QSB filed May
15,
2007).
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10.25†
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Form
of Registration Rights Agreement for the December 2007 Private
Placement.
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10.26†
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Form
of Registration Rights Agreement for the March 2008 Private Placement
(incorporated by reference to Exhibit 10.2 to the Current Report
on
Form 8-K filed March 31, 2008).
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10.27
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Option
Agreement dated September 15, 2006, between Lee S. Rosen and H2Diesel,
Inc. (incorporated by reference to Exhibit 10.10 to the Current
Report on
Form 8-K filed October 26, 2006).
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10.28
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Option
Agreement dated September 19, 2006, between Andrea Festuccia and
H2Diesel,
Inc. (incorporated by reference to Exhibit 10.11 to the Current
Report on
Form 8-K filed October 26, 2006).
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10.29
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Option
Agreement dated October 18, 2006, between David A. Gillespie and
H2Diesel,
Inc. (incorporated by reference to Exhibit 10.12 to the Current
Report on
Form 8-K filed October 26, 2006).
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10.30††
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Option
Agreement dated December 19, 2008 between Cary J. Claiborne and
H2Diesel
Holdings, Inc.
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10.31
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Form
of Independent Director Stock Option Agreement (incorporated by
reference
to Exhibit 10.1 to the Current Report on Form 8-K filed February
21,
2007).
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10.32
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Option
Agreement dated April 24, 2007, between Kim Johnson and H2Diesel
Holdings,
Inc. (incorporated by reference to Exhibit 10.1 to the Quarterly
Report on
Form 10-QSB filed May 15, 2007).
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14.1†
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Code
of Business Conduct and Ethics adopted November 13,
2007.
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21.1†
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Subsidiaries
of New Generation Biofuels Holdings, Inc.
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24.1†
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Power
of Attorney (incorporated by reference to the signature page of
this
annual report on Form 10-K).
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31.1††
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Certification
pursuant to Section 302 of Sarbanes Oxley Act of 2002.
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31.2††
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Certification
pursuant to Section 302 of Sarbanes Oxley Act of 2002.
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32.1†
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Certification
pursuant to Section 906 of Sarbanes Oxley Act of 2002.
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32.2†
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Certification
pursuant to Section 906 of Sarbanes Oxley Act of
2002.
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________________
†
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Filed
as an exhibit to the Annual Report on Form 10-K for the year ended
December 31, 2007, filed March 31, 2008.
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*
Management contract or compensatory plan or arrangement.
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