- Current report filing (8-K)
28 September 2010 - 11:29PM
Edgar (US Regulatory)
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):
September 27,
2010
NEW
GENERATION BIOFUELS HOLDINGS, INC.
(Exact
Name of Registrant as Specified in Charter)
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Florida
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1-34022
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26-0067474
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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5850
Waterloo Road, Suite 140
(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):
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13-e-4(c) under the Exchange Act (17 CFR
240.1 3e-4(c))
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Item
1.01 Entry of Order Approving Stipulation for Settlement of
Claim.
On September
27, 2010, the Superior Court of the State of California for the County of Los
Angeles entered an Order Approving Stipulation for Settlement of Claim (the
“Order”) in the matter entitled
Socius
CG II, Ltd. v. New Generation Biofuels Holdings, Inc
. The
Order provides for the full and final settlement of Socius GC II, Ltd.’s
(“Socius”) $530,833 claim (the “Claim”) against New Generation Biofuels
Holdings, Inc., a Florida corporation (the “Company”). Socius
purchased the Claim from
a
creditor of the Company
(“Creditor”)
pursuant
to the terms of a Claims Purchase Agreement dated effective as of September 22,
2010 between Socius and
Creditor
(the “Purchase Agreement”). The Claim consists of the right to
receive $500,000 of principal amount and interest thereon of $30,833 under a
loan made by
Creditor
to the Company pursuant to the terms of a Secured Convertible Promissory Note
and Security Agreement, dated April 30, 2010, by Extension Agreements dated July
30, 2010 and September 22, 2010 (the “Note”).
Pursuant
to the terms of the Order, on September 27, 2010, the Company issued and
delivered to Socius 5,950,000 shares of common stock (the “Settlement Shares”),
subject to adjustment as set forth in the Order.
The Settlement Shares represent
approximately 9.9% of the total number of shares of the Company’s common stock
outstanding immediately
following
the date of the Order. The
total number of shares of the Company’s common stock to be issued to Socius or
its designee in connection with the Order will be adjusted on the 21st trading
day following the date on which the Settlement Shares are issued, as follows:
(i) if the number of VWAP Shares (as defined below) exceeds the number of
Settlement Shares initially issued, then the Company will issue to Socius or its
designee additional shares of the Company’s common stock equal to the difference
between the number of VWAP Shares and the number of Settlement Shares, and (ii)
if the number of VWAP Shares is less than the number of Settlement Shares, then
Socius or its designee will return to us for cancellation that number of shares
as equals the difference between the number of VWAP Shares and the number of
Settlement Shares.
The
number of VWAP Shares is equal to (i) $530,833 divided by 70% of the volume
weighted average price as reported by Bloomberg LP (“VWAP”) of the Company’s
common stock over the 20-day trading period immediately following the date on
which the Settlement Shares were delivered to Socius, plus (ii) Socius’
legal fees, expenses and costs incurred through October 18, 2010, with the total
divided by the VWAP of the Company’s common stock over the 20-day trading period
immediately following the date on which the Settlement Shares were delivered to
Socius. In no event will the number of shares of common stock issued
to Socius or its designee in connection with the settlement of the Claim,
aggregated with all shares of common stock then owned or beneficially owned or
controlled by, collectively, Socius and its affiliates, at any time exceed 9.99%
of the total number of shares of the Company’s common stock then
outstanding.
The
description of the Order does not purport to be complete and is qualified in its
entirety by reference to the Order, which is filed as Exhibit 10.1 to this
report and incorporated herein by reference.
Item
3.02 Unregistered Sale of
Equity Securities.
The
information set forth in Item 1.01 of this report is incorporated herein by
reference.
The offer
and sale of the securities described in Item 1.01 were effected in reliance on
Section 3(a)(10) of the Securities Act of 1933, as amended.
Item
8.01 Other Events.
Purchase Agreement with
Creditor
On
September 22, 2010, Socius and
Creditor
entered
into a Claims Purchase Agreement (the “Purchase Agreement”) which provides for
the sale by
Creditor
to
Socius of
Creditor
’s
right to the Claim. As of the date of the Purchase Agreement, the
Company was indebted to
Creditor
for
the unpaid principal amount of $500,000 under the Note as well as $30,833 of
accrued but unpaid interest thereon. The Company is a party to the
Purchase Agreement through its execution of an acknowledgment contained
therein.
In
the acknowledgment, the Company acknowledged and agreed with Socius and
Creditor
(i)
that certain of the recitals in the Purchase Agreement are true and correct,
(ii) that the sale of the $530,833 claim to Socius covers only such amount, that
Creditor
reserves
and preserves all of its other claims and interests under the Note and that
Creditor
’s
sale of the $530,833 claim does not in any way prejudice or have any adverse
effect on such other claims and interests of
Creditor
under
the Note (iii) that the execution, delivery and performance of the Purchase
Agreement does not and will not conflict with the terms of the Note nor will it
require any waiver or consent, (iv) that the Note is valid, outstanding and
enforceable in accordance with its terms and is not subject to any defense or
offset, and (v) that Socius and
Creditor
are
relying on the Company’s acknowledgments and agreements in entering into the
Purchase Agreement.
The description of the Purchase
Agreement does not purport to be complete and is qualified in its entirety by
reference to the Purchase Agreement, which is filed as Exhibit 99.1 to this
report and incorporated herein by reference.
Complaint
for Damages
In
connection with the purchase of the Claim and pursuant to the terms of the
Purchase Agreement, on September 24, 2010, Socius filed a complaint for
damages against the Company with the Court. On September 27,
2010, Company counsel and counsel for Socius filed with the Court a joint ex
parte application for court order approving stipulation for settlement of
Claim. After holding a hearing, the Court issued the Order on
September 27, 2010.
Item
9.01 Financial Statements
and Exhibits.
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10.1
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Order
Approving Stipulation for Settlement of Claim
(*)
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99.1
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Claims
Purchase Agreement dated September 22, 2010 by and between Creditor and
Socius CG II, Ltd. containing an Acknowledgment by New Generation Biofuels
Holdings, Inc. (*)
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______________
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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.
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NEW
GENERATION BIOFUELS HOLDINGS, INC.
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Date:
September 28, 2010
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By:
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/s/
Cary J. Claiborne
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Cary
J. Claiborne
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President
and Chief Executive Officer
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EXHIBIT
INDEX
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10.1
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Order
Approving Stipulation for Settlement of Claim
(*)
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|
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99.1
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Claims
Purchase Agreement dated September 22, 2010 by and between Creditor and
Socius CG II, Ltd. containing an Acknowledgment by New Generation Biofuels
Holdings, Inc. (*)
|
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______________
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