Attached files
| file | filename |
|---|---|
| EX-5.1 - New Generation Biofuels Holdings, Inc | v168644_ex5-1.htm |
| EX-4.2 - New Generation Biofuels Holdings, Inc | v168644_ex4-2.htm |
| EX-4.1 - New Generation Biofuels Holdings, Inc | v168644_ex4-1.htm |
| EX-1.1 - New Generation Biofuels Holdings, Inc | v168644_ex1-1.htm |
| EX-10.1 - New Generation Biofuels Holdings, Inc | v168644_ex10-1.htm |
| EX-99.1 - New Generation Biofuels Holdings, Inc | v168644_ex99-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): December 10, 2009
NEW
GENERATION BIOFUELS HOLDINGS, INC.
(Exact
Name of Registrant as Specified in Charter)
|
Florida
|
1-34022
|
26-0067474
|
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
5850
Waterloo Road, Suite 140
Columbia,
Maryland 21045
(Address
of principal executive offices)(Zip Code)
(410)
480-8084
(Registrant’s
telephone number, including area code)
N/A
(Former
Name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13-e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry Into a Material Definitive Agreement.
On
December
10, 2009, New Generation Biofuels Holdings, Inc., a Florida corporation (the
“Company”), entered into definitive subscription agreements (“Subscription
Agreements”) with certain investors relating to the issuance and sale by the
Company of 1,926,250 shares (the “Shares”) of its common stock, par value
$0.001 per share (“Common Stock”), and warrants (“Warrants”) to
purchase 577,875 shares of Common Stock (the “Offering”).
The
Company is selling the Shares and Warrants in units (the “Units”) at a price of
$0.80 per Unit, with each Unit consisting of one share of Common Stock and a
Warrant to purchase 0.30 shares of Common Stock at an exercise price of
$0.90 per share. The Shares and the Warrants are immediately
separable and will be issued separately. Units will not be issued or
certificated and will not trade on any exchange or be listed for quotation on
any market. The Warrants have a five year term from the date of
issuance, will not be exercisable prior to six months after issuance and will
include provisions providing for adjustments to the number of shares exercisable
thereunder upon stock dividends, stock splits and similar events. We also do not
intend that the Warrants will trade on any exchange or be listed for quotation
on any market.
The Company also entered into a
placement agent agreement, dated December 10, 2009 (the “Placement Agent
Agreement”), with Jesup & Lamont Securities Corporation (the “Placement
Agent”) pursuant to which the Placement Agent agreed to act as exclusive
placement agent on a best efforts basis for the Offering. The
Placement Agent will receive a fee equal to 7% of the gross proceeds of the
Offering and a warrant to purchase shares of Common Stock equal to 7% (or such
lesser number as may be determined by FINRA) of the number of shares of
Common Stock sold by the Company in the Offering on a fully diluted basis at an
exercise price of $0.90 per share (the “PA Warrant”). The PA Warrant has a five
year term from the date of issuance and will not be exercisable prior to six
months after issuance. It also provides for cashless exercise at any time,
rights to have the underlying shares registered in a future shelf registration
by the company and adjustments to the number of shares exercisable thereunder
upon stock dividends, stock splits and similar events.
The aggregate net proceeds from the
Offering, after deducting the placement agent’s fee and the estimated offering
expenses payable by the Company, are expected to be approximately
$1.304 million.
A copy of the form of Placement Agent
Agreement is attached hereto as Exhibit 1.1 to this report and is
incorporated herein by reference. The description of the Placement Agent
Agreement is a summary only and is qualified in its entirety by reference to
Exhibit 1.1. A copy of the form of Warrant and form of PA
Warrant is attached hereto as Exhibit 4.1 and 4.2 to this report,
respectively, and is incorporated herein by reference. The description of the
Warrant and PA Warrant is a summary only and is qualified in its entirety by
reference to Exhibit 4.1 and 4.2, respectively. A copy of the Subscription
Agreement is attached hereto as Exhibit 10.1 to this report and is
incorporated herein by reference. The description of the Subscription
Agreement is a summary only and is qualified in its entirety by reference to
Exhibit 10.1.
The legal opinion of Hogan &
Hartson LLP relating to the Shares, the Warrants, the PA Warrant and the Common
Stock issuable upon exercise of the Warrants is attached as Exhibit 5.1 to
this report.
2
On December 11, 2009, the Company
issued a press release with respect to the pricing of its offer and sale of the
Units. A copy of the press release is attached hereto as Exhibit 99.1 to
this report and is incorporated by reference herein.
The Company offered and is selling the
above referenced securities pursuant to a shelf registration statement on Form
S-3 (Registration No. 333-156449) declared effective by the Securities and
Exchange Commission on January 27, 2009 (together with the prospectus included
therein, the “Shelf Registration Statement”). This Current Report on
Form 8-K is being filed in part for the purpose of incorporating the Exhibits
1.1, 4.1, 4.2, 10.1 and 99.1 of this report by reference into the Shelf
Registration Statement for purposes of this offering. The benefits of
the representations and warranties set forth in such documents are intended only
for investors in the offering, and do not constitute continuing representations
and warranties of the Company to any future or other investors.
Item
9.01 Financial Statements and Exhibits.
|
(d)
|
Exhibits
|
|
|
1.1
|
Placement
Agent Agreement, dated as of December 10, 2009, by and among the Company
and Jesup & Lamont Securities
Corporation.
|
|
|
4.1
|
Form
of Warrant.
|
|
|
4.2
|
Form
of Placement Agent Warrant.
|
|
|
5.1
|
Opinion
of Hogan & Hartson LLP.
|
|
|
10.1
|
Form
of Subscription Agreement.
|
|
|
23.1
|
Consent
of Hogan & Hartson LLP (included in Exhibit
5.1).
|
|
|
99.1
|
Press
release dated December 11, 2009.
|
3
SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
| NEW GENERATION BIOFUELS HOLDINGS, INC. | |||
|
Date:
December 11, 2009
|
By:
|
/s/ Cary J. Claiborne | |
| Cary J. Claiborne | |||
| President, Chief Executive Officer and Chief Financial Officer | |||
4
EXHIBIT
INDEX
|
1.1
|
Placement
Agent Agreement, dated as of December 10, 2009, by and among the Company
and Jesup & Lamont Securities
Corporation.
|
|
4.1
|
Form
of Warrant.
|
|
4.2
|
Form
of Placement Agent Warrant.
|
|
5.1
|
Opinion
of Hogan & Hartson LLP.
|
|
10.1
|
Form
of Subscription Agreement.
|
|
23.1
|
Consent
of Hogan & Hartson LLP (included in Exhibit
5.1).
|
|
99.1
|
Press
release dated December 11, 2009.
|
5