As filed
with the Securities and Exchange Commission on June 17, 2009
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 2 TO
FORM
S-1 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BLUEFIRE
ETHANOL FUELS, INC.
(Name of
small business issuer in its charter)
|
Nevada
|
2860
|
20-4590982
|
|
(State
or jurisdiction of incorporation or organization)
|
(Primary
Standard Industrial Classification
Code
Number)
|
(I.R.S.
Employer Identification
umber)
|
BlueFire
Ethanol Fuels, Inc.
31
Musick, Irvine, California 92618
(949) 588-3767 (telephone
number)
(949) 588-3972 (facsimile
number)
(Address
and telephone number of principal executive offices and principal place of
business)
X-Pedited
Transfer Corporation
535
16th
Street, Suite 810
Denver,
CO 80202
(303) 573-1000 (telephone
number)
(Name,
address and telephone number of agent for service)
Copies
to:
Joseph
M. Lucosky, Esq.
Anslow
& Jaclin, LLP
195
Route 9 South, Suite 204
Manalapan,
NJ 07726
Tel:
(732) 409-1212
Fax:
(732) 577-1188
Approximate
date of proposed sale to public: From time to time after the effective date of
this Registration Statement.
If any
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. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
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. o
If this
Form is a post effective amendment filed pursuant to Rule 462(d) 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. o
If
delivery of the prospectus is expected to be made pursuant to Rule 434, please
check the following box. o
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.
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Large
accelerated filer
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¨
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Accelerated
filer
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¨
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|
Non-accelerated
filer
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¨
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Smaller
reporting company
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x
|
|
(Do
not check if a smaller reporting company)
|
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 2 to Form S-1 Registration Statement (333-148199) is
filed solely to amend the signature page to include the date of the signature
for each person signing such Registration Statement. No changes have been made
to Part I of the Registration Statement.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
24. Indemnification of Directors and Officers.
The
Company's Amended and Restated Bylaws provide for indemnification of directors
and officers against certain liabilities. Officers and directors of the Company
are indemnified generally for any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, except
an action by or in the right of the corporation, against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the action, suit or proceeding if
he acted in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, has no reasonable cause to believe his conduct
was unlawful.
The
Company's Amended and Restated Articles of Incorporation further provides the
following indemnifications:
(a) a
director of the Corporation shall not be personally liable to the Corporation or
to its shareholders for damages for breach of fiduciary duty as a director of
the Corporation or to its shareholders for damages otherwise existing for (i)
any breach of the director's duty of loyalty to the Corporation or to its
shareholders; (ii) acts or omission not in good faith or which involve
intentional misconduct or a knowing violation of the law; (iii) acts revolving
around any unlawful distribution or contribution; or (iv) any transaction from
which the director directly or indirectly derived any improper personal benefit.
If Nevada Law is hereafter amended to eliminate or limit further liability of a
director, then, in addition to the elimination and limitation of liability
provided by the foregoing, the liability of each director shall be eliminated or
limited to the fullest extent permitted under the provisions of Nevada Law as so
amended. Any repeal or modification of the indemnification provided in these
Articles shall not adversely affect any right or protection of a director of the
Corporation under these Articles, as in effect immediately prior to such repeal
or modification, with respect to any liability that would have accrued, but for
this limitation of liability, prior to such repeal or modification.
(b) the
Corporation shall indemnify, to the fullest extent permitted by applicable law
in effect from time to time, any person, and the estate and personal
representative of any such person, against all liability and expense (including,
but not limited to attorney's fees) incurred by reason of the fact that he is or
was a director or officer of the Corporation, he is or was serving at the
request of the Corporation as a director, officer, partner, trustee, employee,
fiduciary, or agent of, or in any similar managerial or fiduciary position of,
another domestic or foreign corporation or other individual or entity of an
employee benefit plan. The Corporation shall also indemnify any person who is
serving or has served the Corporation as a director, officer, employee,
fiduciary, or agent and that person's estate and personal representative to the
extent and in the manner provided in any bylaw, resolution of the shareholders
or directors, contract, or otherwise, so long as such provision is legally
permissible.
Insofar
as indemnification for liabilities arising under the Securities Act, as amended,
may be permitted to our directors, officers, and controlling persons pursuant to
the foregoing provisions, or otherwise, we have been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item
25. Other Expenses of Issuance and Distribution.
The
estimated expenses payable by us in connection with the registration of the
shares is as follows:
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SEC
Registration
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$
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2,500
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||
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Accounting
Fees and Expenses
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$
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10,000
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Legal
Fees and Expenses
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$
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50,000
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Printing
Costs
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$
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2,500
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Miscellaneous
Expenses
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$
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10,000
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Total
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$
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Item
26. Recent Sales of Unregistered Securities.
In March
2006, upon incorporation, we issued 10,000 shares of $1.00 par value common
stock to various individuals. In connection with the Reverse Merger, these
individuals received an aggregate of 17,000,000 shares of our restricted common
stock.
-3-
Prior to
the Reverse Merger, Sucre entered into an agreement with two related investors
for the sale of 3,000,000 free trading shares of the Sucre’s common stock for
gross proceeds of $1,000,000. The previous management of Sucre erroneously
issued 4,000,000 shares of the Sucre’s common stock to the investors. To date,
the excess shares of 1,000,000 have not been returned to the transfer agent. We
have demanded the return of the 1,000,000 and are actively pursuing every
possible channel to get the shares returned. Since we cannot predict the
ultimate outcome, the 1,000,000 shares have been accounted for as outstanding
and included in the common shares retained by Sucre’s stockholders. These
securities were issued exempt from registration pursuant to Rule 504 of
Regulation D of the Securities Act of 1933 as amended.
Convertible
Notes Payable
On July
13, 2007, we issued several convertible notes aggregating a total of $500,000
with seven accredited investors, including $25,000 from our Chief Financial
Officer. Under the terms of the notes, we are required to repay any principal
balance and interest, at 10% per annum within 120 days of the note. The
convertible promissory note is convertible only upon default. The holders also
received warrants to purchase common stock at $5.00 per share. The warrants vest
immediately and expire in five years. The total warrants issued pursuant to this
transaction were 200,000 on a pro-rata basis to investors. The convertible
promissory notes are only convertible into shares of our common stock in the
event of a default. The conversion price is determined based on one third of the
average of the last-trade prices of our common stock for the ten trading days
preceding the default date. On November 7, 2007, we re-paid all of our 10%
convertible promissory notes dated July 13, 2007, to all our private investors,
totaling approximately $516,000, including interest of approximately $16,000.
This private offering was completed as an offering exempt from registration
pursuant to Section 4(2) of the Securities Act of 1933.
Senior
Secured Convertible Notes Payable
On August
21, 2007, we issued senior secured convertible notes (the “Convertible Notes”)
aggregating a total of $2,000,000 with two institutional accredited investors.
Under the terms of the Convertible Notes, we are required to repay any principal
balance and interest, at 8% per annum, due August 21, 2009. On a quarterly
basis, we have the option to pay interest due in cash or in stock. The
Convertible Notes are secured by substantially all of our assets. The total
warrants issued pursuant to this transaction were 1,000,000 on a pro-rata basis
to investors. These include class A warrants to purchase 500,000 common stock at
$5.48 per share and class B warrants to purchase an additional 500,000 shares of
common stock at $6.32 per share. The warrants vest immediately and expire in
three years. The holders of the Convertible Notes have the option to convert the
Convertible Notes into shares of our common stock at $4.21 per share at any time
prior to maturity. If, before maturity, we consummate a financing of at least
$10,000,000, then the principal and accrued unpaid interest of the Convertible
Notes shall be automatically converted into shares of our common stock at $4.21
per share. In addition, we entered into a registration rights agreement with the
holders of the Convertible Notes whereby we are required to file an initial
registration statement on Form SB-2 or Form S-3 with the SEC in order to
register the resale of the maximum amount of common stock underlying the
Convertible Notes within 120 days of the agreement (December 19, 2007). The
registration statement must then be declared effective no later than 90 calendar
days (March 18, 2008), in the event of a full or no review by the SEC, days from
the initial filing date.
In the
event that we fail to file a registration statement within the 120 day period,
we must pay the holder 3% of the face amount as liquidated damages. In the event
that we fail to have the registration statement declared effective by the SEC by
the dates described above, or fail to maintain on the registration statement the
effectiveness of the registration statement thereafter, then we must pay the
holders an amount equal to 2% of the aggregate purchase price paid by each
holder, for each month the registration statement remains uncured. In addition,
if we do not complete a qualified financing within 120 days of the a (December
19, 2007), we must pay the holder an additional 1% of the face amount as
liquidated damages. Liquidated damages cannot exceed 15% of the face amount of
the Convertible Notes. No accrual has been made to the accompanying financial
statements as management does not believe that such damages are probable of
being incurred.
On
December 3, 2007 and December 14, 2007, we consummated an agreement to issue up
to 5,740,741 shares of common stock and warrants to purchase 5,740,741 shares of
common stock for net proceeds of $14,360,000 (the “December Private Placement”).
The warrants have an exercise price of $2.90 per share and expire five years
from the date of issuance.
In
connection with the December Private Placement, we modified the conversion price
of our previously issued 8% Senior Secured Convertible Promissory Notes
(“Convertible Notes”) from $4.21 to $2.90 per share. We also modified the
exercise price of the class “A” and class “B” warrants issued with the
Convertible Notes from $5.48 and $6.32, respectively to $2.90 per
share.
On
December 14, 2007, the holders of the Convertible Notes converted their
outstanding principal balance of $2,000,000 and accrued interest of
$33,333 into 700,922 shares of common stock.
Equity
Offering
On
December 3, 2007 and December 14, 2007, the Company consummated an agreement to
issue up to 5,740,741 shares of common stock and warrants to purchase 5,740,741
shares of common stock for aggregate proceeds of $14,360,000. The warrants have
an exercise price of $2.90 per share and expire five years from the date of
issuance.
-4-
In
addition, the Company entered into a registration rights agreement with the
investors whereby the Company is required to file an initial registration
statement on Form SB-2 (or another applicable registration form) with the SEC in
order to register the resale of the above common stock and warrants to purchase
common stock. The registration statement is required to be filed within 45 days
from December 14, 2007. The registration statement must then be declared
effective no later than 150 calendar days (May 12, 2008) from the initial filing
date.
The
Company also agreed to register the conversion shares and shares underlying the
warrants issued in connection with its previously Convertible Notes. The details
of the registration rights of the Convertible Notes can be found in the
Company’s August 28, 2007 8-K.
In the
event the Company fails to file its initial registration statement within the 45
day period or, in the event that the Company fails to have the registration
statement declared effective by the SEC by the dates described above, then the
Company must pay the investors certain liquidated damages.
Item
27. Exhibits.
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Exhibit
No.
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Description
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2.1
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Stock
Purchase Agreement and Plan of Reorganization dated May 31, 2006, filed
December 13, 2006 (1)
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3.1
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Amended
and Restated Articles of Incorporation dated July 2, 2006, filed December
13, 2006 (1)
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3.2
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Amended
and Restated Bylaws dated May 27, 2006, filed December 13, 2006
(1)
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3.3
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Second
Amended and Restated Bylaws dated April 24, 2008, filed April 29, 2008
(11)
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4.1
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Form
of Promissory Note (2)
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4.2
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Form
of Subscription Agreement (2)
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4.3
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Description
of Promissory Note dated July 13, 2007 (4)
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4.4
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Form
of Convertible Promissory Note dated August 22, 2007
(5)
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4.5
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Form
of Warrant Agreement dated August 22, 2007 (5)
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4.6
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Stock
Purchase Agreement dated December 3, 2007 (7)
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4.7
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Securities
Purchase Agreement dated December 14, 2007 (7)
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4.8
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Form
of Warrant dated December 14, 2007 (7)
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5.1
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Opinion
of Anslow & Jaclin, LLP as to the validity of the common stock
(8)
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10.1
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Form
Directors Agreement, filed December 13, 2006 (1)
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10.2
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Form
Executive Employment Agreement, filed December 13, 2006
(1)
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10.3
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Arkenol
Technology License Agreement, dated March 1, 2006, filed December 13, 2006
(1)
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10.4
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ARK
Energy Asset Transfer and Acquisition Agreement, dated March 1, 2006,
filed December 13, 2006 (1)
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10.5
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Form
of the Consulting Agreement (2)
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10.6
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Amended
and Restated 2006 Incentive and Nonstatutory Stock Option Plan, dated
December 13, 2006 (6)
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10.7
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CFO
Employment Agreement (12)
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10.8
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Employment
Agreement, dated March 31, 2008, issued by the Company
(13)
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10.9
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Revolving
Line of Credit Agreement, dated February 24, 2009
(14)
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-5-
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14.1
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Code
of Ethics (10)
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21.1
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List
of Subsidiaries (3)
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23.1
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Consent
of McKennon Wilson & Morgan LLP (8)
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23.2
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Consent
of Anslow & Jaclin, LLP (included in opinion set forth in Exhibit 5.1
hereto)
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24.1
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Power
of Attorney (9)
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99.1
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Audit
Committee Charter (2)
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99.2
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Compensation
Committee Charter (2)
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(1)
Incorporated by reference to the Company’s Form 10-SB, as filed with the
SEC on December 13, 2006.
(2)
Incorporated by reference to the Company’s Form 10-SB/A, as filed with the SEC
on February 28, 2007.
(3)
Incorporated by reference to the Company’s Form 10-SB/A, as filed with the SEC
on April 18, 2007.
(4)
Incorporated by reference to the Company’s Form 8-K, as filed with the SEC on
July 16, 2007.
(5)
Incorporated by reference to the Company’s Form 8-K, as filed with the SEC on
August 28, 2007.
(6)
Incorporated by reference to the Company’s Form S-8, as filed with the SEC on
December 17, 2007.
(7)
Incorporated by reference to the Company’s Form 8-K, as filed with the SEC on
December 18, 2007.
(8) Filed
herewith.
(9)
Included on signature page of this Registration Statement.
(10) Incorporated
by reference to the Company’s Form 10K-SB, as filed with the SEC on February 28,
2008.
(11)
Incorporated by reference to the Company’s Form 8-K, as filed with the SEC on
April 29, 2008.
(12)
Incorporated by reference to the Company's Form 10-SB/A, as filed with the SEC
on March 26, 2007.
(13)
Incorporated by reference to the Company’s Form 8-K, as filed with the SEC on
April 7, 2008.
(14)
Incorporated by reference to the Company’s Form 8-K, as filed with the SEC on
March 6, 2009.
Item
28. Undertakings.
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 of
1933;
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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
-6-
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;
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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.
(4)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(5) Each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(6) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
i. Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
ii. Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
iii. The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
iv. Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
-7-
SIGNATURES
In
accordance with the requirements of the Securities Act, BlueFire Ethanol Fuels,
Inc., the Registrant, certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-1 and authorized this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Irvine, California, on June 17,
2009.
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BLUEFIRE
ETHANOL FUELS, INC.
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||
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By:
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/s/ Arnold R.
Klann
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Arnold
R. Klann,
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||
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President
and Chief Executive Officer
(Principal
Executive Officer)
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||
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By:
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/s/Christopher
Scott
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Christopher
Scott
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||
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Chief
Financial Officer
(Principal
Financial Officer
and
Principal Accounting
Officer)
|
||
In
accordance with the requirements of the Securities Act of 1933, this Post
Effective Amendment No.
2 to the
Registration Statement on Form S-1 has been signed by the following persons in
the capacities and on the dates indicated.
|
Signature
|
Title
|
Date
|
||
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/s/
Arnold R. Klann
|
Director
and Chairman of the Board;
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June
17, 2009
|
||
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Arnold
R. Klann
|
President
and Chief Executive Officer
|
|||
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/s/
Necitas Sumait
|
Director,
Secretary
|
June
17, 2009
|
||
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Necitas
Sumait
|
and
Senior Vice President
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|||
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/s/
Christopher Scott
|
Chief
Financial Officer
|
June
17, 2009
|
||
|
Christopher
Scott
|
||||
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/s/
John Cuzens
|
Chief
Technology Officer
|
June
17, 2009
|
||
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John
Cuzens
|
and
Senior Vice President
|
|||
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/s/
Chris Nichols
|
Director
|
June
17, 2009
|
||
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Chris
Nichols
|
||||
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/s/
Joseph I. Emas
|
Director
|
June
17, 2009
|
||
|
Joseph
I. Emas
|
||||
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/s/
Victor H. Doolan
|
Director
|
June
17, 2009
|
||
|
Victor
H. Doolan
|
||||
-8-