Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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3: EX-23.2 Ex-23.2: Consent of Ernst & Young LLP HTML 5K
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code, of Agent For
Service)
Copies to:
Alexander D. Lynch, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue New York, New York10153
(212) 310-8000
William J. Schnoor, Esq.
Jocelyn M. Arel, Esq.
Goodwin Procter LLP
Exchange Place Boston, Massachusetts02109
(617) 570-1000
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the
effective date of this Registration Statement.
If any of the 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, check the
following
box. o
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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(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
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. (Check one):
Large accelerated
filer o
Accelerated
filer o
Non-accelerated
filer þ
Smaller reporting
company o
(Do not check if a smaller reporting company)
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the Securities
and Exchange Commission declares our registration statement
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
This is our initial public offering and no public market
currently exists for our shares. We are selling
2,750,000 shares of common stock. We expect that the
initial public offering price will be between $8.00 and $12.00
per share.
THE OFFERING
PER SHARE
TOTAL
Initial Public Offering Price
$
$
Underwriting Discount
$
$
Proceeds to Changing World Technologies, Inc.
$
$
We have granted the underwriters an option for a period of
30 days to purchase up to 412,500 additional shares of
common stock solely to cover
over-allotments,
if any. The underwriters expect to deliver the shares of common
stock
on .
Proposed NYSE Alternext Symbol: CWL
OpenIPO®:
The method of distribution being used by the underwriters in
this offering differs somewhat from that traditionally employed
in firm commitment underwritten public offerings. In particular,
the public offering price and allocation of shares will be
determined primarily by an auction process conducted by the
underwriters and other securities dealers participating in this
offering. The minimum size for any bid in the auction is
100 shares. A more detailed description of this process,
known as an OpenIPO, is included in “Plan of
Distribution” beginning on page 105.
Investing in our common stock involves a high degree of
risk.
See “Risk Factors” beginning on page 11.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed on the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
You should rely only on the information contained in this
document or to which we have referred you. We have not
authorized anyone to provide you with information that is
different. This document may only be used where it is legal to
sell these securities. The information in this document may only
be accurate on the date of this document. Our business and
financial condition may have changed since that date.
This summary highlights key information contained elsewhere
in this prospectus. It may not contain all of the information
that is important to you. You should read the entire prospectus,
including “Risk Factors,” our consolidated financial
statements and related notes thereto and the other documents to
which this prospectus refers, before making an investment
decision. As used in this prospectus, unless the context
otherwise requires or indicates, references to “CWT,”“Changing World Technologies,”“Company,”“we,”“our” and “us” refer to
Changing World Technologies, Inc. and its subsidiaries.
Our
Business
Company Overview
We sell renewable diesel fuel oil and organic fertilizers which
we currently produce from animal and food processing waste using
our proprietary Thermal Conversion Process, or TCP. TCP can
convert a broad range of organic wastes, or feedstock, including
animal and food processing waste, trap and low-value greases,
mixed plastics, rubber and foam, into our products. TCP emulates
the earth’s natural geological and geothermal processes
that transform organic material into fuels through the
application of water, heat and pressure in various stages. Our
renewable diesel has a significantly higher net energy balance,
which is defined as the ratio of the amount of energy contained
in a fuel to the energy required to produce that fuel, than
conventional diesel, ethanol or other biofuels. Our renewable
diesel does not compete for food crops, uses fewer natural
resources than conventional diesel, ethanol or other biofuels,
and does not contain alcohol. TCP uses conventional processing
equipment, which we believe requires a comparatively small
operating footprint and is relatively easy to permit compared to
other waste processing technologies.
Our first production facility, located in Carthage, Missouri,
has demonstrated the scalability of TCP in an approximately 250
ton per day production operation. Our Carthage facility has the
capacity to convert 78,000 tons of animal and food processing
waste into approximately 4 million to 9 million
gallons of renewable diesel per year, depending on the feedstock
mix used. We also produce fertilizers through TCP. We currently
sell the renewable diesel produced at our Carthage facility as a
fuel for the industrial boiler market, and we sell our
fertilizers to a number of farms in the Carthage area. During
the nine months ended September 30, 2008, we produced
approximately 1,095,000 gallons of renewable diesel and sold
approximately 684,000 gallons of renewable diesel. We received
an average price of $1.19 per gallon of renewable diesel sold in
the nine months ended September 30, 2008.
We rely on trade secrets relating to TCP, including facility
operating conditions, process chemistry and facility design. In
addition, we exclusively license seven issued U.S. patents
and five additional pending U.S. patent applications, a
subset of which relate to our proprietary TCP technology as
currently implemented. We commenced development of our Carthage
facility in 2002 and, from 2005 to 2007, we developed and
refined the equipment, procedures and processes at our Carthage
facility to bring TCP from demonstration status to production.
We commenced commercial sales of our renewable diesel in January
2007, and we commenced sales of one of our fertilizers in the
second quarter of 2008. Our Carthage facility is currently our
only production facility.
We intend to establish additional facilities close to sources of
feedstock, initially focusing on animal and food processing
waste and trap and low-value greases in North America and
Europe. We have entered into discussions with several animal and
food processors in North America and Europe and with municipal
treatment facilities and trap grease aggregators in the
Northeast United States regarding potential construction of new
TCP facilities and retrofitting existing facilities with TCP.
There are approximately 23.5 million tons of animal and
food processing waste generated annually in North America and
18.7 million tons generated annually in Europe. There are
approximately 4.7 million tons of trap grease generated
annually in North America. Using TCP, these feedstocks can be
converted into our renewable diesel and fertilizers.
We believe that a number of trends in our markets are converging
to increase demand for TCP and our renewable diesel and
fertilizers, including:
•
increased
long-term
global demand for industrial fuels from rapidly developing
nations, such as China and India;
•
increased focus on the development of alternative domestic
energy supplies due to geopolitical instability in the Middle
East and other oil exporting regions;
•
rising prices and global shortages of food due to the diversion
of crops to be used as raw materials in the creation of ethanol
and other biofuels;
•
increased demand for sustainable, “green” energy
sources;
•
increased demand for cost-effective methods for the safe
disposal of food and animal waste due to growing concerns
related to pathogenic and toxic contamination of the food chain;
and
•
increased demand by municipal water treatment facilities for
technology to address growing concerns regarding improper
disposal of trap and low-value greases from food service
establishments.
Our
Strengths
We believe our key strengths include the following:
Customer-Validated Renewable Diesel. We have
secured two customers for our renewable diesel. One customer,
Schreiber Foods Inc., or Schreiber, recently extended its
contracts with us, through May 2010, to provide them with
renewable diesel for two large industrial boilers at facilities
in Missouri. Schreiber’s boilers are expected to consume
approximately 1.4 million gallons annually of our renewable
diesel. In addition, Dyno Nobel Inc., or Dyno Nobel, has entered
into a two-year agreement with us to purchase approximately 2.0
million gallons of renewable diesel.
Scalable Business Model. We believe that as we
start to operate higher capacity TCP facilities, we should
benefit from substantial economies of scale and improve our
operating margins because a majority of our operating costs are
fixed and do not vary with production levels. We intend to price
our product at parity, on a per-British thermal unit, or Btu,
basis, with No. 2 Heating Oil. The price of No. 2
Heating Oil on the New York Mercantile Exchange was $1.44 per
gallon as of December 31, 2008, and the average price of
No. 2 Heating Oil over the last three years from
December 31, 2005 to December 31, 2008 was $2.25 per
gallon. Our renewable diesel contains approximately 9% fewer
Btus than No. 2 Heating Oil on a volumetric basis, and, at
parity, we believe our renewable diesel will sell for a price
that will be 9% lower than the market price for No. 2
Heating Oil. We estimate that our cash production cost,
including the cost of feedstock, of renewable diesel will
ultimately be in the range of $0.85 to $1.60 per gallon for our
larger production facilities. We believe that our cost of
feedstock conversion, which we define as our cash production
cost less the cost of feedstock, will be between $0.30 and $0.80
per gallon of renewable diesel for our larger production
facilities. We believe our future feedstock costs will vary
significantly based on the type of feedstock utilized and then
prevailing market conditions for feedstock. Our cash production
cost does not give effect to the $1.00 per gallon renewable
diesel mixture tax credit that we receive from the
U.S. government for each gallon of
renewable diesel produced at our facilities that we sell in the
United States. The renewable diesel mixture tax credit is
scheduled to expire at the end of 2009. Using the current
feedstock mix at our Carthage facility, for every gallon of
renewable diesel we produce, we produce approximately one gallon
of liquid nitrogen concentrate fertilizer, and approximately
three pounds of solid mineral phosphate fertilizer.
Proprietary Intellectual Property. We
exclusively license seven issued U.S. patents and five
additional pending U.S. patent applications, a subset of
which are directed to our proprietary TCP technology as
currently implemented, from AB-CWT LLC, or AB-CWT, a related
company. We also rely on trade secrets related to facility
operating conditions, process chemistry, facility design and
research and development experience that we have gained in the
ten years we have worked with TCP.
Ability to Convert Wide Variety of
Feedstock. We believe that TCP’s ability to
convert a wide variety of feedstock into renewable diesel
provides us with a competitive advantage in acquiring the
feedstock for our process. TCP can process a wide variety of
waste streams simultaneously. As a result, we can adjust our
sourcing efforts for feedstock as market prices for these
feedstock change. We believe this flexibility is a critical
advantage as it affords us an increased ability to manage our
costs.
Energy Efficient Process. TCP achieves high
product yield and recovery of the energy contained in the
feedstock, while maintaining a positive net energy balance.
Energy requirements are minimal due to the moderate processing
temperatures and pressures used, the short amount of time
required for the process and the recovery and reuse of waste
heat.
Environmentally Friendly Product. Our products
are renewable and are considered “carbon-neutral” as
they are created from animal and food processing waste and do
not result in the release of additional fossil carbon into the
environment. By converting the wastes rather than sending them
to a landfill, TCP eliminates the potential for pathogens and
harmful chemicals to leach into the ground water.
Low Cost of Customer Conversion. Based on our
experience with our customers, conversion of existing heating
oil or natural gas infrastructure to handle our renewable diesel
can be done with relatively simple modifications. The one-time
cost for converting an industrial boiler burning fuel oil or a
similar boiler burning natural gas to burn renewable diesel is
approximately $50,000 and $100,000, respectively. We estimate
that complete conversion can be accomplished in less than
30 days for fuel oil boilers and 60 days for natural
gas boilers, with the boiler down-time limited to less than
three days.
Flexible Manufacturing Facilities. We believe
new TCP facilities can be easily deployed due to several
attributes of TCP, including its relatively short permitting
process, the use of conventional chemical processing equipment,
the relatively small footprint required for a TCP facility as
compared to other alternative waste processing technologies and
the ability to scale the facility size to match the market
opportunity.
Our
Strategy
Our goal is to further expand our production and sale of
renewable diesel and fertilizers from waste. The key elements of
our strategy to achieve this goal include:
Develop New Facilities. Based on our analysis
of optimal plant sizes, initially we intend to establish TCP
facilities that can convert from 500 to 2,000 tons of animal and
food processing waste per day and produce approximately
8 million to 86 million gallons of renewable diesel
per year,
depending on the size of the facility and the composition of the
feedstock. We also intend to establish grease facilities that
can convert from 150 to 600 tons of feedstock per day and
produce 3 million to 46 million gallons of renewable
diesel per year, depending on the size of the facility and the
composition of the feedstock. We expect to locate future
facilities near sources of feedstock, in particular, near
agricultural areas that produce significant food and animal
processing waste and near areas that yield considerable amounts
of trap and low-value greases in North America and Europe.
We will also look to locate future facilities in areas where we
can replace No. 2 Heating Oil as the principal local
industrial boiler fuel.
Secure Additional Sources of Animal and Food Processing
Waste. We believe the animal and food processing
industries are good sources of feedstock because they generate
significant quantities of organic wastes that can be converted
to renewable diesel using TCP and are under increasing market
and regulatory pressures to change how animal wastes are handled
and utilized. We have entered into a supply agreement with
Butterball, LLC, or Butterball, to convert animal and food
processing waste from a Butterball turkey processing facility in
Carthage, Missouri. To secure large and steady supplies of
additional feedstock, we are seeking to enter into supply
agreements with other animal and food processors in North
America and Europe. We may replicate the strategy we utilized in
developing our Carthage facility and enter into arrangements
with other animal and food processors to co-locate our TCP
facility near their facility to provide a cost-effective waste
management alternative.
Expand our Sales and Marketing Efforts. As
production of our renewable diesel and fertilizers increases, we
plan to expand our sales and marketing infrastructure as well as
begin to collaborate with third parties that have local sales
and marketing expertise near our facilities. The market value of
our renewable diesel will vary, to some degree, by location
based on local market conditions and regulatory regimes. We
intend to make decisions regarding sales and marketing of our
products based on the specific products and locations of our
facilities. Our renewable diesel is transported by truck.
Secure Financing for Future Facilities on Favorable
Terms. We believe that certain aspects of our
business model, including its sustainable and renewable aspect,
will enable us to secure financing on favorable terms,
particularly in relation to fuel refinement and power generation
projects. In addition to raising debt financing and potentially
offering additional equity securities, we plan to work with
governmental entities to secure grants and co-sponsorships of
some of our projects.
Improve Efficiency and Reduce Costs. We are
continually seeking to optimize TCP to improve the efficiency of
our facilities and to reduce the per-Btu costs of producing our
renewable diesel. We have developed a substantial amount of
experience during the development, construction, operation and
scale-up of
our Carthage facility, and we are continually seeking to improve
our technology and facility operations.
Develop Potential Future Markets and Applications of
TCP. We believe that there are significant
opportunities to use TCP in different markets and convert other
suitable waste streams into renewable diesel and fertilizers. As
we continue to expand our operations, we expect to make efforts
to penetrate these other areas, including the conversion of
plastics and other non-metallic wastes to our renewable diesel
and the sale of our renewable diesel into the electrical power
generation market.
Regulations
We are subject to the rules and regulations promulgated by
various federal, state and local governmental agencies. Our
Carthage facility and our research and development facility in
Philadelphia are subject to rules and regulations set forth by
the U.S. Environmental Protection
Agency, as well as state and local agencies, that regulate air
emissions, odor, storm water, sewer water and wastewater. The
marketing of our fertilizers is regulated by state Departments
of Agriculture, which control the registration of fertilizer
products, licensing of manufacturers, label information,
inspections and various other aspects associated with the
marketing of fertilizers. In addition, we are subject to
regulation by the U.S. Department of Treasury associated
with the renewable diesel mixture tax credit from the
U.S. government.
Selected Risk
Factors
Investing in our common stock involves substantial risk. Before
participating in this offering, you should carefully consider
all of the information in this prospectus, including risks
discussed in “Risk Factors,” beginning on
page 11. Some of our most significant risks are:
•
We have a limited operating history and our business may not be
as successful as we envision.
•
We have a history of losses, deficits and negative operating
cash flows and will likely continue to incur losses for the
foreseeable future, which may continue and which may negatively
impact our ability to achieve our business objectives.
•
Our $1.00 per gallon renewable diesel mixture tax credit may not
be extended beyond December 31, 2009 or may be reduced.
•
We may not be able to reduce our cash production costs for our
renewable diesel as anticipated.
•
We may not be profitable or able to successfully finance and
implement our expansion strategy, including the development and
construction of new facilities on a timely basis or at all.
•
The design and operation of our facilities involve significant
risks.
•
Sufficient customer acceptance for our renewable diesel may
never develop.
•
If we are unable to obtain sufficient waste material to serve as
feedstock for our facilities, we may not be able to operate our
facilities at full capacity or on a profitable basis.
•
A substantial portion of the technology used in our business is
owned by AB-CWT, a related company.
•
Failure to obtain regulatory approvals or meet applicable state
and local standards could adversely affect our operations.
•
Failure to protect, or successfully enforce, our patents,
copyright and trade secrets could adversely affect our
operations.
•
Failure to obtain patent rights protecting current and future
TCP operations could adversely affect our operations.
•
We have a limited number of customers and the loss of any of
these customers would significantly reduce our revenues.
•
Our recurring losses from operations have raised substantial
doubt regarding our ability to continue as a going concern, and
as a result, our independent registered public accounting firm
included an explanatory paragraph in its report with respect to
this uncertainty.
not incorporated into this prospectus and should not be relied
upon in determining whether to make an investment in our common
stock.
Recent
Developments
On February 6, 2009, we entered into a renewable diesel
fuel oil sales contract with Carlisle Power Transmission
Products, Inc. (“Carlisle”) whereby Carlisle agreed to
purchase approximately 1.35 million gallons of renewable
diesel annually from us for a term of two years beginning upon
completion of Carlisle’s boiler conversion, subject to
certain termination conditions. The price for the first year is
$0.59 per MMBtu below the lower of Carlisle’s monthly
natural gas cost or the Monthly U.S. Residual Fuel Oil
Retail Sales by All Sellers price. The price reflects a $0.23
per MMBtu discount for renewable fuel purchase and a $0.36 per
MMBtu allowance to repay boiler system conversion costs during
the term of the contract. The price for the second year is $0.57
per MMBtu below the lower of Carlisle’s monthly natural gas
cost or the Monthly U.S. Residual Fuel Oil Retail Sales by
All Sellers price. The price reflects a $0.21 per MMBtu discount
for renewable fuel purchased and a $0.36 MMBtu allowance to
repay boiler system conversion costs during the term of the
contract.
We estimate that the net proceeds to us from this offering,
after underwriting discounts and commissions, estimated offering
expenses and the repayment of the promissory note issued to
Weil, Gotshal & Manges LLP for accrued fees and expenses
relating to this offering, will be approximately
$24.5 million, assuming an initial public offering price of
$10.00 per share, the midpoint of the estimated price range set
forth on the cover page of this prospectus. We intend to use
approximately $2.1 million of the net proceeds of this
offering to repay the promissory notes, including accrued
interest, issued to certain affiliates in connection with
short-term borrowings used for working capital. The estimated
net proceeds of approximately $24.5 million are net of this
payment. We intend to use the remaining net proceeds of this
offering for general corporate and working capital purposes,
including the initial development of new facilities. See
“Use of Proceeds.”
OpenIPO process
This offering will be made through the OpenIPO process, in which
the allocation of shares and the public offering price are
primarily based on an auction in which prospective purchasers
are required to bid for the shares. The OpenIPO process allows
all qualified investors, whether individuals or institutions, to
bid for shares. All successful bidders in the auction will pay
the same price per share.
• Bidders may submit bids through the
underwriters or participating dealers.
• Potential investors may bid any price for the
shares, including a price above or below the projected price
range on the cover of this prospectus.
• Once the auction closes, the underwriters will
determine the highest price that will sell all of the shares
offered. This is the clearing price and is the maximum price at
which the shares will be sold. The clearing price, and therefore
the actual offering price, could be higher or lower than the
projected price range on the cover of this prospectus.
• We may choose to sell shares at the
auction-set clearing price or we may choose to sell
the shares at a lower offering price, taking into account
additional factors.
• Bidders that submit valid bids at or above the
offering price will receive, at a minimum, a prorated amount of
shares for which they bid.
The OpenIPO process is described in full under “Plan of
Distribution” beginning on page 105.
Dividend policy
We do not anticipate paying any cash dividends on our common
stock for the foreseeable future. See “Dividend
Policy.”
Listing
We have applied to list our shares on the NYSE Alternext under
the symbol “CWL.”
Risk factors
Investment in our common stock involves substantial risks. You
should read this prospectus carefully, including the section
entitled “Risk Factors” and the consolidated financial
statements and the related notes to those statements included in
this prospectus, before investing in our common stock.
The number of shares of common stock outstanding after this
offering is based on the number of shares of common stock
outstanding as of September 30, 2008. Unless otherwise
indicated, this number:
•
excludes 249,560 shares of our common stock issuable upon
exercise of stock options that will be outstanding upon
completion of this offering, at a weighted average exercise
price of $30.66 per share;
•
excludes 1,000,000 shares of our common stock reserved for
future grants under our compensation plans;
•
excludes 925,757 shares of our common stock issuable upon
exercise of warrants;
•
reflects the automatic conversion of all outstanding shares of
preferred stock into 455,189 shares of common stock in
connection with this offering;
•
gives effect to a seven for one stock split and a subsequent one
for three reverse stock split of our common stock;
•
gives effect to our amended and restated certificate of
incorporation, which will be in effect prior to the completion
of this offering;
•
assumes no exercise of the underwriters’ option to purchase
up to an additional 412,500 shares from us; and
•
assumes an initial public offering price of $10.00 per share,
the midpoint of the estimated price range shown on the cover
page of this prospectus.
The following table provides our summary historical consolidated
financial data for the periods and as of the dates indicated.
The summary historical consolidated financial data for the years
ended December 31, 2005, 2006 and 2007 are derived from our
audited consolidated financial statements for such periods
included elsewhere in this prospectus. The summary historical
consolidated financial data for the nine months ended
September 30, 2007 and 2008 are derived from our unaudited
consolidated financial statements included elsewhere in this
prospectus. The results for any interim period are not
necessarily indicative of the results that may be expected for a
full year.
The consolidated financial data for the year ended
December 31, 2005 reflects our acquisition of the portion
of Renewable Environmental Solutions, LLC, or RES, our joint
venture with ConAgra Foods Inc., or ConAgra, that we did not
already own in July 2005. Prior to the RES acquisition we used
the equity method of accounting for our 50% investment in RES.
Commencing August 1, 2005, RES became a wholly-owned
subsidiary and is included in our consolidated financial
statements.
The summary historical consolidated financial data set forth
below should be read in conjunction with “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations,”“Selected Historical Consolidated
Financial Data” and the consolidated financial statements
and notes thereto included elsewhere in this prospectus.
The pro forma balance sheet data
reflects (i) the completion of a secured debt and warrant
financing for aggregate net proceeds of $2.0 million, which
was completed in December 2008 and (ii) the automatic
conversion of all outstanding shares of preferred stock into
shares of common stock in connection with this offering. See
“Capitalization” and “Use of Proceeds.”
(2)
The pro forma as adjusted balance
sheet data reflects the receipt of estimated net proceeds from
the sale of shares of common stock in this offering at $10.00
per share, the midpoint of the estimated price range shown on
the cover page of this prospectus, of $24.5 million, net of
underwriting discounts and commissions, estimated offering
expenses and the repayment of the promissory note issued to
Weil, Gotshal & Manges LLP. The pro forma as adjusted
balance sheet also reflects the repayment of the promissory
notes issued to certain affiliates in connection with
short-term
borrowings as discussed in footnote (1) above. See
“Capitalization”’ and “Use of Proceeds.”
An investment in our common stock involves a high degree of
risk. You should carefully consider the following risks, as well
as other information contained in this prospectus before making
an investment in our common stock. The risks described below are
those that we believe are the material risks we face. Any of the
risks described below could significantly and adversely affect
our business, prospects, financial condition and results of
operations. As a result, the trading price of our common stock
could decline and you could lose all or part of your
investment.
Risks Relating to
Our Business
We have a limited
operating history and our business may not be as successful as
we envision.
Our Carthage, Missouri facility was commissioned in 2005. From
2005 to 2007, we developed and refined the equipment, procedures
and processes at our Carthage facility. We began commercial
sales of our renewable diesel in 2007 and one of our fertilizers
in the second quarter of 2008. As a result, we have a limited
operating history from which you can evaluate our business and
prospects. In addition, our prospects must be considered in
light of the risks and uncertainties encountered by an
early-stage company in the rapidly evolving renewable energy
market, where supply and demand may change significantly over a
short period. Some of these risks relate to our potential
inability to:
•
raise additional capital;
•
develop and construct future facilities;
•
obtain adequate financing to fund our expansion strategy and our
operations;
•
reduce our cash production costs, including our feedstock costs,
for our renewable diesel to anticipated levels;
•
expand our operations to convert additional types of feedstock;
•
effectively manage our business and operations;
•
secure supplies of feedstock;
•
develop markets for our renewable diesel and fertilizers;
•
further develop and achieve wider acceptance of TCP;
•
effectively manage our costs as we expand our business;
•
attract and retain customers;
•
obtain regulatory approval and meet governmental standards; and
•
manage rapid growth in personnel and operations.
If we cannot successfully mitigate these risks, our business,
financial condition and results of operations will suffer.
We have a history
of losses, deficits and negative operating cash flows and will
likely continue to incur losses for the foreseeable future,
which may continue and which may negatively impact our ability
to achieve our business objectives.
We incurred net losses of $21.8 million for the year ended
December 31, 2006, $19.9 million for the year ended
December 31, 2007 and $18.8 million for the nine
months ended September 30, 2008, and as of
September 30, 2008, we had an accumulated deficit of
$117.8 million. We will incur operating losses and
continued negative cash flows for the foreseeable future as we
invest in the development of TCP and build additional facilities
to implement our expansion strategy. We may not achieve or
sustain profitability on a quarterly or annual basis in the
future. Our operations are subject to a number of risks inherent
in the establishment of a new technology and in the development
of new markets, as well as operating at an early stage of
development. To be profitable we will have to
significantly increase our revenues and significantly reduce our
cost of goods sold, in particular, our cash production costs for
our renewable diesel. Future revenues and profits, if any, will
depend upon various factors such as those discussed above, many
of which are outside of our control. Additionally, as we
continue to incur losses, our accumulated deficit will continue
to increase, which might make it harder for us to obtain
financing in the future. If we are unable to increase our
revenues or achieve profitability, we may have to reduce or
terminate our operations.
If the renewable
diesel mixture tax credit under the Energy Policy Act of 2005 is
not extended beyond 2009 or it is reduced, our business,
financial condition and results of operations may
suffer.
Under the Energy Policy Act of 2005, as amended by the Emergency
Economic Stabilization Act of 2008, or the Energy Policy Act, we
currently receive a $1.00 renewable diesel mixture tax credit
for each gallon of renewable diesel sold. Because we have no
fuel excise tax payable, we receive a direct cash payment from
the U.S. Treasury. Without the renewable diesel mixture tax
credit, or if it is reduced, we may not be able to compete with
traditional energy suppliers or other suppliers of alternative
or renewable diesel who could provide fuel to our customers at a
lower cost than we do. Under the Energy Policy Act, the
renewable diesel mixture tax credit is set to expire on
December 31, 2009. If the renewable diesel mixture tax
credit is not extended beyond 2009 or is reduced, it would have
a material adverse effect on our business, financial condition
and results of operations.
Operation of our
Carthage facility and the operation of future facilities involve
significant risks.
The operation of our Carthage facility and the operation of
future facilities involve many risks, including:
•
the inaccuracy of our assumptions with respect to the timing and
amount of anticipated costs and revenues;
•
interruptions in the supply of feedstock;
•
the breakdown or failure of equipment or processes;
•
unforeseen engineering and environmental issues;
•
difficulty or inability to find suitable replacement parts for
equipment;
•
the unavailability of sufficient quantities of feedstock;
•
disruption in utilities;
•
permitting and other regulatory issues, license revocation and
changes in legal requirements;
•
labor disputes and work stoppages;
•
unanticipated cost overruns;
•
weather interferences, catastrophic events including fires,
explosions, earthquakes, droughts and acts of terrorism;
•
the exercise of the power of eminent domain; and
•
performance below expected levels of output or efficiency.
If any of these risks were to materialize and our operations at
our Carthage facility were significantly disrupted, it would
have a material adverse effect on our business, financial
condition and results of operations.
We have
encountered issues in the design and engineering of our Carthage
facility which have hindered our ability to effectively operate
the Carthage facility, and we may encounter similar difficulties
with our future facilities.
The operation of facilities involves many risks, including
start-up
problems, the breakdown of equipment and performance below
expected levels of output and efficiency. For example, during
our initial operations in Carthage, we dealt with a number of
start-up
equipment and process design issues and inadequate metallurgical
selection. We have not operated at a consistent mechanical
availability in excess of 80% for any fiscal quarter to date. In
the first nine months of 2008, our Carthage facility achieved
80% average mechanical availability, which is the percentage of
planned operating hours that the facility actually operated. We
will make improvements to the design of our new facilities based
on operating experience and knowledge we developed at Carthage,
and we are seeking to improve the average mechanical
availability at our Carthage facility. However, design and
engineering issues may nonetheless occur and, as a result, we
may not make improvements on our average mechanical availability
at our Carthage facility. We have experienced periods where our
Carthage facility was not operational, which required us to pay
to divert or dispose of feedstock that we received but were
unable to store or process. If our facility becomes
non-operational in the future, we may face additional diversion
and disposal costs related to the disposal of excess feedstock
that we may be contracted to purchase but cannot store or
process. In addition, we close our Carthage facility on an
annual basis to conduct routine maintenance and equipment
upgrades. These closures typically last two to four weeks and
can affect our results of operations for the relevant period. We
have also incurred costs in connection with the disposal of
waste water at our Carthage facility. We may encounter new
design and engineering challenges as we seek to expand the range
of feedstock we use in TCP. Material, engineering, workmanship
or design issues may result in diminished facility production
capacity, increased costs of operations or cause us to
temporarily or permanently halt facility operations, all of
which could harm our business, financial condition and results
of operations.
Because the time
required to negotiate contracts related to the operation of our
facilities is lengthy, and may be subject to delays, our results
of operations may suffer.
The negotiation of the large number of agreements necessary to
operate and manage any new facilities involves a long
development cycle and decision-making process. Delays in other
parties’ decision-making processes are outside of our
control and may have a negative impact on our cost of goods
sold, operating expenses, receipt of revenues and sales
projections.
We may not be
able to implement our expansion strategy as planned or at
all.
We have one production TCP facility in Carthage, Missouri and
one research and development facility in Philadelphia,
Pennsylvania. We plan to grow our business by developing and
constructing additional facilities.
Development, construction and expansion of TCP facilities are
subject to a number of risks, any of which could prevent us from
commencing or expanding operations at a particular facility as
expected or at all. These risks include finding appropriate
sites, regulatory and permitting matters, increased construction
costs, construction delays, availability of financing and higher
than anticipated financing costs.
We must obtain and maintain numerous regulatory approvals and
permits in order to construct additional facilities. Obtaining
these approvals and permits could be a time-consuming and
expensive process, and we may not be able to obtain them on a
timely basis or at all. For certain of our projects, we may
begin development and construction and incur substantial
development and construction costs prior to obtaining all of the
approvals and permits necessary to operate a TCP facility at
that site. In the event that we fail to ultimately obtain all
necessary permits, we may be forced to delay operations of the
facility and the receipt of related revenues or abandon the
project altogether and lose the benefit of any development and
construction costs already incurred, which would have an adverse
effect on our results of operations. In addition, federal and
state governmental
regulatory requirements may substantially increase our
construction costs, which could have a material adverse effect
on our business, results of operations and financial condition.
Our construction costs may materially exceed budgeted amounts
that could adversely affect our results of operations and
financial condition. We expect to spend an average of
$30 million to $125 million per plant on construction
and start-up
operating costs for facilities that can convert from 150 to
2,000 tons of animal waste, food processing waste and greases
per day. Although we intend to enter into fixed-price contracts
for the construction of our facilities, we may be unable to
negotiate or agree to a fixed price.
We believe that contractors, engineering firms, construction
firms and equipment suppliers increasingly are receiving
requests and orders from companies to build energy production
facilities and other similar facilities and, therefore, we may
not be able to secure their services or products on a timely
basis or on acceptable financial or commercial terms, or at all.
In addition, we may suffer significant construction delays or
cost overruns as a result of a variety of factors, such as labor
and material shortages, defects in materials and workmanship,
adverse weather, transportation constraints, construction change
orders, site changes, labor issues and other unforeseen
difficulties, any of which could prevent us from completing the
construction of our planned facilities. As a result, we may not
be able to grow our business as quickly as we planned. Any
delays or cost overruns may result in the renegotiation of our
construction contracts which could increase our construction
costs.
Additionally, we may not be able to obtain adequate financing to
fund our expansion strategy on acceptable terms, a timely basis
or at all, which could prevent, delay or significantly increase
the related costs associated with the implementation of our
expansion strategy.
If we are unable to address these risks in a satisfactory and
timely manner, we may not be able to implement our expansion
strategy as planned or at all. We intend to obtain and maintain
insurance to protect against some of the risks relating to the
construction of new projects, however such insurance may not be
available or adequate to cover lost revenues or increased costs
if we have construction problems, overruns or delays.
We may not be able to reduce our cash production costs for
our renewable diesel as anticipated.
The principal performance metric that we use to evaluate our
costs of goods sold is our cash production cost per gallon of
renewable diesel. For the nine months ended September 30,2008, our cash production cost at our Carthage facility was
$11.18. To be profitable, we will have to reduce our cash
production costs for our renewable diesel. Although we believe
our future cash production costs will be substantially lower
than our current cash production cost per gallon, we may not be
able to reduce our cash production costs for our renewable
diesel if we fail to:
•
enter into contractual arrangements for feedstock on more
favorable terms;
•
purchase adequate supplies of high yielding feedstock, such as
beef and pork processing waste and restaurant grease at
favorable prices, or otherwise reduce our feedstock costs on a
per ton or per gallon basis;
•
benefit from economies of scale resulting from the operation of
multiple, larger-scale facilities;
•
benefit from anticipated lower maintenance costs and improved
operational reliability at our new facilities which will be
designed based on the knowledge gained from the operation of our
Carthage facility; or
•
reduce our disposal costs for unused feedstock.
If we are unable to reduce our cash production costs for our
renewable diesel as anticipated, our financial condition and
results of operations will be materially and negatively affected
and we may not be profitable.
We will be highly
dependent upon the continued and mechanical availability of a
limited number of production facilities.
We have one production facility in Carthage, Missouri, and we
anticipate only having a limited number of production facilities
for the foreseeable future. As a result, our operations may be
subject to material interruption if any of our facilities
experiences a major accident or is damaged by severe weather or
other natural disasters, such as fire, flood or earthquake. In
addition, our operations may be subject to labor disruptions and
other hazards inherent in our industry. Some of those hazards
may cause personal injury and loss of life, severe damage to or
destruction of property and equipment and environmental damage
and may result in suspension or termination of operations,
incurrence of liability and the imposition of civil or criminal
penalties. Our precautions to safeguard our facilities,
including insurance and health and safety protocols, may not be
adequate to cover our losses in any particular case.
Moreover, our facilities may experience unscheduled downtime or
may not otherwise operate as planned or expected. All of our
facilities have or will have a specified nameplate capacity that
represents the production capacity specified in the applicable
construction agreement. The builder generally tests the capacity
of the facility prior to the start of its operations. The
operation of our facilities is and will be subject to various
uncertainties relating to our ability to implement the necessary
process improvements required to achieve optimal production
capacities. As a result, our facilities may not produce
renewable diesel at the levels we expect. For example, in the
first nine months of 2008, our Carthage facility achieved 80%
average mechanical availability. We are targeting operating our
facilities at 86% to 90% average mechanical availability in the
future to reduce our cash production costs and improve our
operating performance. We may not be able to achieve our target
mechanical availability. In addition, we close our facilities
periodically to conduct routine maintenance and upgrades in
order to operate at anticipated capacity levels. In the event
any of our facilities do not run at their nameplate or any
increased expected capacity levels or we fail to improve our
average mechanical availability, our business, results of
operations and financial condition may be harmed.
We will need to
obtain additional financing to implement our expansion
strategy.
We may not be able to finance our expansion strategy. The
development, construction and expansion of TCP facilities will
require us to raise additional debt or equity financing.
Additionally, we plan to work with governmental entities to
secure grants and co-sponsorships of some of our projects, as
well as take advantage of federal and state incentive programs
to secure favorable financing. Our ability to secure financing
and the costs of such capital are dependent on numerous factors,
including general economic and capital market conditions, credit
availability from lenders, investor confidence and the existence
of regulatory and tax incentives that are conducive to raising
capital. Current turmoil in the financial markets has caused
banks and financial institutions to decrease the amount of
capital available for lending and has significantly increased
the risk premium of such borrowings. In addition, this turmoil
has significantly limited the ability of companies to raise
funds through the sale of equity or debt securities. If we are
unable to raise additional funds, obtain capital on acceptable
terms, secure government grants or co-sponsorships of some of
our projects or take advantage of federal and state incentive
programs to secure favorable financing, we may have to delay,
modify or abandon some or all of our expansion strategies.
The amount of any indebtedness that we may raise in the future
may be substantial, and we could be required to secure such
indebtedness with our assets. If we default on any future
secured indebtedness, our lenders may foreclose on any
facilities securing such indebtedness. The incurrence of
indebtedness could require us to meet financial and operating
covenants, which could place limits on our operations and
ability to raise additional capital, decrease our liquidity and
increase the amount of cash flow required to service our debt.
If we experience construction problems, overruns or delays which
adversely affect our ability to generate revenues, we may not be
able to fund principal or interest payments under any debt that
we may incur.
Any effort to sell additional securities may not be successful
or may not raise sufficient capital to finance additional
facilities. The issuance of additional equity securities could
result in dilution to our existing stockholders, including
investors in this offering. If we are unsuccessful in raising
sufficient capital to fund our expansion strategy, we may have
to delay or abandon our expansion strategy, which could harm our
business prospects, financial condition and results of
operations.
As we expand our
operations, we may not be able to manage future growth
effectively.
As we expand our operations, we may be unable to continue to
grow our business or manage future growth. Our planned expansion
and any other future expansion will place a significant strain
on our management, personnel, systems and resources. We plan to
significantly expand our manufacturing capacity and hire
additional employees to support an increase in engineering,
manufacturing, research and development and our sales and
marketing efforts. To successfully manage our growth and handle
the responsibilities of being a public company, we believe we
must effectively:
•
hire, train, integrate and manage additional qualified engineers
for research and development activities, sales and marketing
personnel, and financial and information technology personnel;
•
retain key management and augment our management team,
particularly if we lose key members;
•
implement additional and improve existing administrative,
financial and operations systems, procedures and controls;
•
expand and upgrade our technological capabilities; and
•
manage multiple relationships with our customers, suppliers and
other third parties.
We may encounter difficulties in effectively managing these and
other issues presented by rapid growth. If we are unable to
manage our growth effectively, we may not be able to take
advantage of market opportunities, research and further develop
TCP, develop our renewable diesel and fertilizers, satisfy
customer requirements, execute our business plan or respond to
competitive pressures.
We face risks
associated with establishing and expanding our international
business.
We expect to establish, and to expand over time, international
operations and activities. We have entered into discussions with
animal and food processors in Canada and Europe regarding
potential construction of new TCP facilities and retrofitting
existing facilities with TCP. International business operations
are subject to a variety of risks, including:
•
changes in or interpretations of foreign regulations that may
adversely affect our ability to sell our products, perform
services or repatriate profits to the United States;
•
imposition of tariffs;
•
fluctuations in foreign currency exchange rates;
•
imposition of limitations on production, sale or export of
renewable diesel or fertilizer in foreign countries;
•
imposition of limitations on or increase of withholding and
other taxes on remittances and other payments by foreign
subsidiaries or joint ventures;
•
conducting business in places where business practices and
customs are unfamiliar and unknown and difficulty in managing
our international operations;
economic or political instability in foreign countries;
•
imposition or increase of investment requirements and other
restrictions or requirements by foreign governments;
•
uncertainties relating to foreign laws and legal proceedings;
•
having to comply with various U.S. laws, including the
Foreign Corrupt Practices Act; and
•
having to comply with U.S. export control regulations and
policies that restrict our ability to communicate with
non-U.S. employees
and supply foreign affiliates and customers.
We do not know the impact that these regulatory, geopolitical
and other factors may have on our international business in the
future.
We anticipate
that we will sell our renewable diesel to a limited number of
customers and the loss of any of these customers would
significantly reduce our revenues and adversely impact our
results of operations.
We anticipate that, until we commence renewable diesel
production at other facilities, we will sell our renewable
diesel to a limited number of customers. For example, Schreiber
accounted for approximately 72.9% and 78.1% of our revenues for
the year ended December 31, 2007 and the nine months ended
September 30, 2008, respectively. Although we recently
began sales of our renewable diesel to a second customer, sales
to Schreiber have accounted for most of our total revenues, and
the loss of, or a significant reduction in orders from,
Schreiber, if not immediately replaced, would significantly
reduce our revenues and harm our results of operations. Although
we seek to enter into supply contracts for our renewable diesel,
any failure to do so could result in our inability to sell our
renewable diesel on a timely basis or at favorable prices, which
would harm our business, results of operations and financial
condition.
Sufficient
customer acceptance for our renewable diesel and fertilizers may
never develop or may take longer to develop than we anticipate,
and as a result, the revenues that we derive may be insufficient
to fund our operations.
As we seek broader market acceptance for our renewable diesel
and fertilizers, it is possible that we may expend large sums of
money to bring our renewable diesel and fertilizers to market
without a commensurate increase in revenues. Sufficient markets
may never develop for our renewable diesel and fertilizers, or
develop more slowly than we anticipate. The development of
sufficient markets for our renewable diesel and fertilizers may
be affected by cost competitiveness of our renewable diesel and
fertilizers, consumer reluctance to try a new product and
emergence of more competitive products.
We anticipate that the market for our renewable diesel will
require potential customers to switch from their existing
heating oil and diesel fuel suppliers or switch from using
natural gas, which requires new equipment or retrofitting
existing equipment and requires new or additional permitting to
burn our renewable diesel products. For example, fuel storage
tanks and liquid fuel delivery systems need to be installed for
natural gas fired boilers. The one-time cost for converting a
boiler burning fuel oil or a similar boiler burning natural gas
to burn renewable diesel is approximately $50,000 and $100,000,
respectively. Initially, we intend to fund these boiler
modifications or provide a price adjustment for our renewable
diesel as a means of reimbursing the cost of modifications
incurred by a customer. Because we only recently began selling
our renewable diesel, potential customers may be skeptical as to
supply reliability, quality control and our financial viability,
which may prevent them from purchasing our renewable diesel or
entering into long-term supply agreements with us. If the market
for our renewable diesel does not develop as anticipated, we
will have to ship and store our renewable diesel, which would be
expensive. We cannot estimate whether demand for our renewable
diesel will materialize at anticipated prices, or whether
satisfactory profit margins will be achieved. If such pricing
levels are not achieved or sustained, or if our technologies and
business approach to our
markets do not achieve or sustain broad acceptance, our
business, operating results and financial condition will be
materially and negatively impacted.
We currently
price our renewable diesel primarily based on the price of
natural gas, and as we focus our development efforts on projects
devoted to the production and sale of renewable diesel and
fertilizers as commodities, we will be increasingly exposed to
volatility in the commodity price of natural gas, petroleum fuel
oil and fertilizer, which could have a material adverse impact
on our profitability.
We currently price our renewable diesel primarily based on the
price of natural gas, and as we seek to increase our production
and continue to develop the production of renewable diesel and
fertilizers for sale as commodities, we will become increasingly
exposed to market risk with respect to the commodity pricing
applicable to diesel fuel and fertilizer. Realized commodity
prices received for production of our renewable diesel and
fertilizers are expected to be primarily driven by spot prices
applicable to diesel fuel and fertilizer, respectively.
Historically, diesel fuel prices have been volatile, and we
expect such volatility to continue. Fluctuations in the
commodity price of diesel or fertilizer may reduce our profit
margins, especially if we do not have long-term contracts for
the sale of our output of renewable diesel or fertilizer at
fixed or predictable prices. At such time as our facilities
begin to produce substantial quantities of renewable diesel or
fertilizers for sale, we intend to explore various strategies,
including long-term sale agreements, in order to mitigate the
associated commodity price risk and volatility. For example,
Schreiber has executed a three-year supply agreement with us for
our renewable diesel at Schreiber’s Monnet and Mount
Vernon, Missouri facilities. We have also entered into a
two-year contract with another major customer in Carthage,
Missouri for our renewable diesel. If we enter into fixed-price
contracts for a significant portion of our renewable diesel and
fertilizers, those contracts may be at a price level that is
lower than the then prevailing price, and such a difference
could have a negative effect on our revenues, results of
operations and financial condition. In addition, prevailing
prices for diesel oil or fertilizer could move in an unexpected
manner which could result in adverse results. Any such risk
management strategy may not be successful. As a result, our
revenues and profit margins may decline which would have an
adverse impact on our ability to service any indebtedness that
we may incur to build our facilities and on our financial
condition and results of operations.
If we are unable
to obtain sufficient feedstock for our facilities, obtain high
yielding feedstock or obtain feedstock on a cost-effective
basis, we may not be able to operate our facilities at full
capacity or on a profitable basis.
We need to acquire a substantial amount of feedstock for our
production of renewable diesel. In addition, the type of
feedstock we are able to obtain can have significant impact on
the yield of renewable diesel per ton of feedstock. For example,
hog and beef processing waste and restaurant grease yield
significantly more renewable diesel than turkey processing
waste. We use animal and food processing waste to supply our
Carthage facility, and we may use animal and food processing
waste or other organic waste to operate any future facilities
that we may develop. Consolidation within the animal and food
processing industry has resulted in bigger and more efficient
slaughtering operations, the majority of which utilize
“captive” processors to handle their animal and food
processing waste. Simultaneously, the number of small meat
packers, which have historically provided their waste to
independent processors and are a potential source of waste for
us, has decreased significantly. Although the total amount of
slaughtering may be flat or only moderately increasing, the
availability, quantity and quality of raw materials available to
non-captive processors from these sources have all decreased.
Major competitors include large integrated animal and food
processors and independent renderers such as Baker Commodities,
Darling International and Griffin Industries. A significant
decrease in animal and food processing waste or a change in the
type of feedstock available to us could materially and adversely
affect our business and results of operations.
The operation of our facilities is dependent on the availability
of animal and other organic waste resources to produce our
renewable diesel. We only have one binding agreement for the
supply of animal and food processing waste. Butterball is the
key feedstock supplier for our Carthage facility. The feedstock
supply agreement with Butterball requires Butterball to deliver
100% of the animal and food processing waste produced by its
facility in Carthage, Missouri less 40 tons per week, and it has
a two-year initial term, which expires in May 2010. The
agreement automatically renews for subsequent one-year terms,
unless either party terminates with a six-month notice. However,
should Butterball cease its operations, have its operations
interrupted by casualty or otherwise cease supplying feedstock,
our ability to operate our Carthage facility would be materially
and adversely affected.
Lack of animal and food processing waste or adverse changes in
the nature, quantity or cost of such waste would seriously
affect our ability to operate our facilities. As a result, our
revenues and financial condition would be materially and
negatively affected. Adequate quantities of feedstock may not be
available at a price that makes it affordable or cost-effective
for use in our facilities.
If we co-locate
other future facilities near other agricultural and food
processors, we will be dependent on such processor for
feedstock.
If we replicate the strategy we utilized in developing our
Carthage facility and enter into arrangements with other
agricultural and food processors where we co-locate our facility
near their processing facilities, we will be dependent on such
processors for feedstock. While we intend to enter into supply
contracts, should any such processors choose alternate methods
of disposal, cease its operations, have its operations
interrupted by casualty or otherwise cease supplying feedstock,
our ability to operate our other co-located facilities at
capacity or in a cost-effective manner would be materially and
adversely affected.
Technological
advances could significantly decrease the cost of producing
renewable diesel or result in the production of higher-quality
renewable diesel, and if we are unable to adopt or incorporate
technological advances into our operations, TCP could become
uncompetitive or obsolete.
We expect that technological advances in the processes and
procedures for producing renewable diesel will continue to
occur. It is possible that those advances could make TCP less
efficient or obsolete, causing the renewable diesel we produce
to be of a lesser quality than competing renewable fuels or
causing the yield of our renewable diesel to be lower than that
for competing technologies. These advances could also allow our
competitors to produce renewable diesel at a lower cost than
ours. We cannot predict when new technologies may become
available, the rate of acceptance of new technologies by our
competitors or the costs associated with such new technologies.
If we are unable to adopt or incorporate technological advances
or adapt TCP to be competitive with new technologies, our cost
of producing renewable fuels could be significantly higher than
those of our competitors, which could make our facilities and
technology uncompetitive or obsolete.
Many of our
competitors have significantly more resources than we do, and
technology developed by our competitors could become more
commercially successful than ours or render our technology
obsolete.
Competition in the traditional energy business from other energy
companies is well established, with many substantial entities
having multi-billion dollar, multi-national operations.
Competition in the alternative fuels and renewable energy
business is expanding with the growth of the industry and the
advent of many new technologies. We also compete against
traditional fertilizers produced by large companies that have
greater financial and other resources. Larger companies, due to
their better capitalization, will be better positioned to
develop and commercialize new technologies and to install
existing or more advanced equipment, which could reduce our
market share and harm our business.
We may enter
joint ventures with other companies which could adversely affect
our results of operations or cause us to incur additional debt
or assume contingent liabilities.
To expand our business and develop additional facilities, we may
enter into joint ventures with animal or food processing or
other industrial companies or waste processing companies in the
future. Joint ventures involve a number of risks that could harm
our business and result in any joint venture that we enter into
not performing as expected, including:
•
insufficient experience with the technologies and markets
involved;
•
problems integrating or developing operations, personnel,
technologies or products;
•
diversion of management time and attention from our core
business to the joint venture;
•
potential failure to retain key technical, management, sales and
other personnel of the joint venture;
•
difficulties in establishing relationships with suppliers and
customers;
•
subsequent impairment of the acquired assets, including
intangible assets; and
•
being bought out and not realizing the benefits of the joint
venture.
In addition, to the extent that we enter into joint ventures
with animal or food processing companies or waste processing
companies, we may experience competition or channel conflict
with our then existing and potential suppliers and customers.
Specifically, existing and potential suppliers and customers may
perceive that we are competing directly with them by virtue of
such investment and may decide to reduce or eliminate their
supply volume to us or order volume from us.
We may also decide that it is in our best interests to enter
into joint ventures that may negatively impact our margins as a
whole. In addition, joint ventures could require investment of
significant financial resources and may require us to obtain
additional equity financing, which may be dilutive to our then
existing stockholders, or require us to incur indebtedness.
We may pursue
acquisition opportunities, which may subject us to considerable
business and financial risk.
We may pursue acquisitions of companies, including animal or
food processing companies, assets or complementary technologies
in the future. However, we may not be successful in identifying
acquisition opportunities, assessing the value, strengths and
weaknesses of these opportunities and consummating acquisitions
on acceptable terms or at all. Acquisitions may expose us to
business and financial risks that include, but are not limited
to:
•
diverting management’s attention;
•
incurring additional indebtedness;
•
dilution of our common stock due to issuances of additional
equity securities;
•
assuming liabilities, known and unknown;
•
incurring significant additional capital expenditures,
transaction and operating expenses, and non-recurring
acquisition-related charges;
•
the adverse impact on our earnings of the amortization of
identifiable intangible assets recorded as a result of
acquisitions;
•
the adverse impact on our earnings of impairment charges related
to goodwill recorded as a result of acquisitions should we ever
make such a determination that the goodwill or other intangibles
related to any of our acquisitions was impaired;
•
failing to integrate and assimilate the operations of the
acquired businesses, including personnel, technologies, business
systems and corporate cultures;
•
poor performance and customer dissatisfaction with the acquired
company;
failing to achieve operating and financial synergies anticipated
to result from the acquisitions; and
•
failing to retain key personnel of, vendors to and customers of
the acquired businesses.
If we are unable to successfully address the risks associated
with acquisitions, or if we encounter unforeseen expenses,
difficulties, complications or delays frequently encountered in
connection with the integration of acquired entities and the
expansion of operations, our growth may be impaired, we may fail
to achieve acquisition synergies and we may be required to focus
resources on integration of operations rather than on our
primary business.
We may be
adversely affected by environmental, health and safety laws,
regulations and liabilities.
Our Carthage facility and our research and development facility
in Philadelphia are, and any future facilities will be, subject
to federal, state and local regulatory requirements regarding
environmental, health and safety matters, including, but not
limited to air emissions, wastewater discharge, waste disposal,
odor, and occupational health and safety. In many cases, these
regulations require a complex process of obtaining and
maintaining licenses, permits, and approvals from federal,
state, and local agencies. In addition, we must maintain and
monitor our compliance with these regulatory requirements.
Maintaining compliance with environmental and health and safety
regulations is and will continue to be a significant cost to our
business. In the event of any period of non-compliance, our
operating facilities may be forced to shut down until the
compliance issues are resolved, and we could incur significant
liabilities, fines and penalties. For example, we received one
cease and desist order in December 2005 from the Missouri
Department of Natural Resources associated with alleged
violations of Missouri’s odor standards by our Carthage
facility. As a result, production at our Carthage facility was
partially shut down from January 2006 to March 2006. Although we
have resolved the issues in connection with the December 2005
cease and desist order, there can be no assurance that our
operating facilities will not be forced to shut down in
connection with any future event of non-compliance with
environmental and health and safety regulations. Moreover, there
is the risk that these laws will become more stringent, imposing
new or stricter requirements on our current or future
operations. To the extent new regulations are enacted or
adopted, we cannot predict the effect of such regulations on our
business. New regulatory requirements or our failure to maintain
compliance with current standards could require modifications to
operating facilities and significant capital and operating
expenses. Also, we may be subject to third-party claims and
common law liability if our facilities are found to cause
nuisance conditions due to odor or other factors.
Failure to obtain regulatory approvals or meet state
standards could adversely affect our operations.
While our business currently has all necessary operating
approvals material to our operations, we may not always be able
to obtain all required regulatory approvals, or modifications to
existing regulatory approvals, or maintain all required
regulatory approvals. If there is a delay in obtaining any
required regulatory approvals or if we fail to obtain and comply
with any required regulatory approvals, the operation of our
facilities or the sale of renewable diesel or fertilizers to
third parties could be prevented, made subject to additional
regulation or subject our business to additional costs such as
fines or penalties. For example, many states require
registration of fertilizer before it can be distributed in the
state, and a failure to register our fertilizers would limit our
ability to expand fertilizer sales into other markets. In
addition, we may be required to make capital expenditures on an
ongoing basis to comply with increasingly stringent federal,
state, and local environmental, health and safety laws,
regulations and permits.
Moreover, our customers may be subject to regulations, which
vary by state, that limit annually the levels of emissions that
result from burning fuels. If our renewable diesel is not
compatible with a particular state’s emissions standards,
customers may need to limit the amount of
our renewable diesel they burn or not burn it at all. States may
also adopt more stringent standards, which could also affect the
amount of renewable diesel we can sell. If customers are not
able to burn our renewable diesel or are required to limit the
amounts they burn to comply with state standards, our business,
results of operations and financial condition may be harmed.
We rely primarily
upon patents, copyright and trade secret laws and contractual
restrictions to protect our proprietary rights, and, if these
rights are not sufficiently protected, our ability to compete
and generate revenues could suffer.
Our success depends largely on maintaining the proprietary
nature of our process and on our ability to protect our
intellectual property rights. Although we rely on trade secret
laws and contractual restrictions to protect TCP, our success
and ability to compete in the future may also depend to a
significant degree upon obtaining and maintaining patent
protection for TCP. We are the exclusive, worldwide licensee
under seven issued U.S. patents, five pending
U.S. patent applications and 51 issued foreign patents and
pending foreign patent applications, a subset of which are
directed to our proprietary TCP technology as currently
implemented, owned by AB-CWT, a related company, the terms of
which patents will expire between November 1, 2011 and
September 21, 2024. We seek to protect our proprietary
renewable diesel production processes, documentation and other
written materials under trade secret and copyright laws. We also
typically require employees and consultants with access to our
proprietary information to execute confidentiality agreements.
The steps taken by us to protect our proprietary information may
not be adequate to prevent misappropriation of our technology.
In addition, our proprietary rights may not be adequately
protected because:
•
people may not be deterred from misappropriating our
technologies or unauthorized use of disclosure of confidential
information despite the existence of laws or contracts
prohibiting it and adequate remedies may not exist if
misappropriation, unauthorized use or disclosure were to occur;
•
policing unauthorized use of our intellectual property may be
difficult, expensive and time-consuming, and we may be unable to
determine the extent of any unauthorized use; and
•
the laws of other countries in which we may market our
proprietary TCP technology may offer little or no protection for
our proprietary technologies.
Reverse engineering, unauthorized copying or other
misappropriation of our proprietary technologies could enable
third parties to benefit from our technologies without paying us
for doing so. Any inability to adequately protect our
proprietary rights could harm our ability to compete, to
generate revenues and to grow our business.
The patent applications may not result in issued patents, and
even if they result in issued patents, the patents may not have
claims of the scope we seek. In addition, any issued patents may
be challenged, invalidated or declared unenforceable. The term
of any issued patents in the United States would be
20 years from their filing date and if the applications are
pending for a long time period, we may have a correspondingly
shorter term for any patent that may issue since the term of our
exclusive license is for the duration of the last expiring
licensed patents or patent application. In addition, given the
costs of obtaining patent protection, protection may not be
sought for certain innovations that later turn out to be
important.
A substantial
portion of the technology used in our business is owned by
AB-CWT, a related company.
A substantial portion of our technology is protected by patents
that are owned by AB-CWT. We are the exclusive, worldwide
licensee under seven issued U.S. patents, five pending
U.S. patent applications and 51 issued foreign patents and
pending foreign patent applications owned by AB-CWT, a subset of
which are directed to our proprietary TCP technology as
currently implemented. AB-CWT is a Delaware limited liability
company whose members include Brian S. Appel, our Chief
Executive Officer, Jerome Finkelstein, a member of our board of
directors, and one of our principal
stockholders, an entity of Sterling Equities. Together,
Mr. Appel, Mr. Finkelstein and an entity of Sterling
Equities hold over 79% of AB-CWT’s membership interests. We
cannot be certain that our rights to use these patents will
continue. We have an exclusive license to the patents owned by
AB-CWT through Resource Recovery Corporation, or RRC, our
wholly-owned subsidiary. AB-CWT has the right to terminate this
exclusive license for our nonpayment of royalties or our breach
of agreement, if either of which default remains uncured, or in
the event we transfer or assign any of our exclusively licensed
rights without the prior written consent from AB-CWT.
Additionally, upon a change of control of our company, AB-CWT
has the right to terminate our exclusive license. The expiration
of patents licensed from
AB-CWT or
the termination of that license with
AB-CWT would
have a material adverse effect on our business.
We may face
intellectual property infringement claims that could be
time-consuming and costly to defend and could result in our loss
of significant rights.
Litigation regarding patents and other intellectual property
rights is extensive in the technology industry. Although we are
not currently aware of any parties pursuing or intending to
pursue material infringement claims against us, we may be
subject to such claims in the future. Also, because patent
applications in the United States and many other jurisdictions
are kept confidential for 18 months before they are
published, we may be unaware of pending patent applications that
relate to our technology. There may also be third-party patents
and patent applications published or unpublished, of which we
are unaware, but which relate to our technology.
We may also initiate claims to defend our intellectual property
and maintain our intellectual property. Litigation is expensive,
time-consuming, may require the cooperation of our licensor,
could divert management’s attention from our business and
could have a material adverse effect on our business, operating
results or financial condition. If there is a successful claim
of infringement against us, our customers or our third-party
intellectual property providers, we may be required to pay
substantial damages to the party claiming infringement, stop
selling products or using technology that contains the allegedly
infringing intellectual property, or enter into royalty or
license agreements that may not be available on acceptable
terms, if at all. All these judgments could materially damage
our business. We may have to develop non-infringing technology,
and our failure in doing so or obtaining licenses to the
proprietary rights on a timely basis could have a material
adverse effect on our business.
During the
ordinary course of our business, we may become subject to
lawsuits or indemnity claims, which could materially and
adversely affect our business and results of
operations.
We have in the past been, and may in the future be, named as a
defendant in lawsuits, claims and other legal proceedings during
the ordinary course of our business. These actions may seek,
among other things, compensation for alleged personal injury,
workers’ compensation, employment discrimination, breach of
contract, nuisance, negligence, property damage, punitive
damages, civil penalties or other losses, consequential damages
or injunctive or declaratory relief. In addition, pursuant to
our customer arrangements, we generally indemnify our customers
for claims related to property damage from retrofitting, the
use, storage or burning characteristics of our renewable diesel,
as well as intellectual property-related damages. In the event
that such actions or indemnities are ultimately resolved
unfavorably at amounts exceeding our accrued reserves, or at
material amounts, the outcome could materially and adversely
affect our reputation, business and results of operations. In
addition, payments of significant amounts, even if reserved,
could adversely affect our liquidity position.
Our insurance and
contractual protections may not always cover lost revenues,
increased expenses or liquidated damages payments.
Although we maintain insurance, obtain warranties from vendors
and require contractors to meet certain performance levels, the
proceeds of such insurance, warranties, performance
guarantees or risk sharing arrangements may not be adequate to
cover lost revenues, increased expenses or liquidated damages
payments.
Risks Related to
Our Operations and Financial Condition
Our recurring
losses from operations have raised substantial doubt regarding
our ability to continue as a going concern.
Our recurring losses from operations raise substantial doubt
about our ability to continue as a going concern, and as a
result, our independent registered public accounting firm
included an explanatory paragraph in its report on our
consolidated financial statements for the years ended
December 31, 2007, 2006 and 2005 with respect to this
uncertainty. Future reports on our consolidated financial
statements may include an explanatory paragraph with respect to
this uncertainty. The December 31, 2007 financial
statements do not include any adjustments that might result from
the outcome of this uncertainty. In August 2008, we raised
$7.5 million in a private placement, and in
December 2008, we completed a secured debt and warrant
financing for aggregate net proceeds of $2.0 million, which
we expect will be sufficient to fund our operations through
February 2009. If we successfully complete this offering, we
will be able to fund our operations through 2009. The perception
that we may not be able to continue as a going concern may cause
others to choose not to deal with us due to concerns about our
ability to meet our contractual obligations.
Our quarterly
revenues, expenses and results of operations are difficult to
forecast and may fluctuate substantially.
Our quarterly revenues, expenses and results of operations are
difficult to forecast. We may experience substantial
fluctuations in revenues, expenses and results of operations
from quarter to quarter. You should not rely on our results of
operations in any prior reporting period to be indicative of our
performance in future reporting periods. Many different factors
could cause our results of operations to vary from quarter to
quarter, including:
•
the timing and amount of capital expenditures for facility
construction and expansion;
•
the efficiencies and costs of facility operations;
•
availability and cost of feedstock;
•
oil, diesel and natural gas prices;
•
the timing and length of routine maintenance and equipment
upgrade related facility shutdowns;
•
competition;
•
seasonal fluctuations in demand for our renewable diesel oil and
our fertilizers;
•
costs of compliance with regulatory requirements;
•
the timing, magnitude and terms of any future acquisitions or
joint ventures;
•
personnel changes;
•
general changes to the U.S. and global economies; and
•
political conditions or events.
We base our current and future operating expense levels and our
investment plans on estimates of future revenues and rate of
growth. We expect that our expenses will increase in the future,
and we may not be able to adjust our spending quickly enough if
our revenues fall short of our expectations. Any shortfalls in
our revenues or in our expected growth rates could result in
decreases in our stock price.
Our business is
highly dependent on key personnel.
Our future success depends to a significant extent on the
continued services of Mr. Brian S. Appel, our Chief
Executive Officer, Mr. Michael J. McLaughlin, our Chief
Financial Officer, Mr. James H. Freiss, our Chief Operating
Officer, and Mr. Dan F. Decker, our Executive Vice
President, as well as
other key personnel. Messrs. Appel, Freiss and Decker serve
key roles in the development and operations of our business,
including application of their market and operational expertise
to our day-to-day operations, and the loss of any one of them
could disrupt our operations. We intend to enter into employment
agreements with each of these officers. If, however, we were to
lose the services of any of these officers for any reason,
including voluntary resignation or retirement, we may not be
able to find a replacement who has equal skill or ability, and
our business may be adversely affected. We maintain key-man
insurance for Mr. Appel. In 2007, we accepted the
resignation of Steve A. Carlson, our former Chief Financial
Officer, and Brad Aldrich, our former Chief Operating Officer.
We may not be
able to attract and retain the highly skilled employees we need
to support our business.
Our ability to construct additional facilities and further
refine TCP is dependent on the experience and expertise of our
employees, especially highly trained engineers, facility
operations personnel and facility managers. We believe that our
future success will depend in large part on our ability to
attract and retain qualified personnel, particularly as we
continue to secure additional sources of animal and food waste
and implement our expansion strategy. Many of the companies with
which we compete for experienced personnel have greater
resources than we do and may be able to offer more attractive
terms of employment. As competition for qualified employees
grows, our cost of labor could increase, which could adversely
impact our results of operations. In 2007, our then Chief
Financial Officer and Chief Operating Officer resigned. We
cannot predict our success in hiring or retaining the personnel
we require for continued growth.
We determined
that at December 31, 2007, we had a material weakness in
our internal controls over financial reporting.
At December 31, 2007, we had a material weakness in our
internal controls over financial reporting. Under standards
established by the Public Company Accounting Oversight Board, or
PCAOB, a “material weakness” is a deficiency, or a
combination of deficiencies, in internal control over financial
reporting, such that there is a reasonable possibility that a
material misstatement of the Company’s annual or interim
financial statements will not be prevented or detected on a
timely basis. The material weaknesses identified was with
respect to the technical expertise of our accounting staff,
particularly our need to re-evaluate our current accounting
staff to determine if we have sufficient accounting personnel
with the requisite expertise to ensure our ability to properly,
accurately and reliably prepare our consolidated financial
statements in accordance with generally accepted accounting
principles. As we prepare for the completion of this offering,
we are in the process of addressing the issues. In September
2008, Michael J. McLaughlin joined our company as our Chief
Financial Officer and Suzanne Wollman joined our company as our
Controller. However, our remediation efforts may not enable us
to remedy the material weakness or avoid other material
weaknesses or significant deficiencies in the future. In
addition, these and any other material weaknesses and
significant deficiencies will need to be addressed as part of
the evaluation of our internal controls over financial reporting
pursuant to Section 404 of the Sarbanes-Oxley Act of 2002
and may impair our ability to comply with Section 404.
We will become
subject to additional financial and other reporting and
corporate governance requirements that may be difficult for us
to satisfy. Evolving regulation of corporate governance and
public disclosure may result in additional expenses and
continuing uncertainty.
We have historically operated our business as a private company.
In connection with this offering, we will become obligated to
file with the Securities and Exchange Commission annual and
quarterly information and other reports that are specified in
Sections 13 and 15(d) of the Securities Exchange Act of
1934, as amended, or the Exchange Act, and we will also become
subject to other new financial and other reporting and corporate
governance requirements, including the requirements
of the NYSE Alternext and certain provisions of the
Sarbanes-Oxley Act of 2002 and the regulations promulgated
thereunder, which will impose significant compliance obligations
upon us. These obligations will require a commitment of
additional resources and result in the diversion of our senior
management’s time and attention from our day-to-day
operations. In particular, we will be required to:
•
create or expand the roles and duties of our board of directors,
our board committees and management;
•
institute a more comprehensive financial reporting and
disclosure compliance function;
•
hire additional financial and accounting personnel and other
experienced accounting and finance staff with the expertise to
address the complex accounting matters applicable to public
companies;
•
establish an internal audit function;
•
prepare and distribute periodic public reports in compliance
with our obligations under the federal securities laws;
•
enhance and formalize closing procedures at the end of our
accounting periods;
•
retain and involve to a greater degree outside counsel and
accountants in the activities listed above;
•
establish an investor relations function; and
•
establish new internal policies, such as those relating to
disclosure controls and procedures and insider trading.
We may not be successful in complying with these obligations,
and compliance with these obligations could be time-consuming
and expensive.
Failure to
achieve and maintain effective internal control over financial
reporting in accordance with Section 404 of the
Sarbanes-Oxley Act of 2002 could have a material adverse effect
on our business and stock price.
As a private company, our internal control over financial
reporting does not currently meet all the standards contemplated
by Section 404 of the Sarbanes-Oxley Act of 2002 that we
will eventually be required to meet. We currently rely primarily
upon a substantive review by our management to help ensure the
accuracy of our financial reports. We will be required to
evaluate, test and implement internal controls over financial
reporting to enable management to report on, and our independent
registered public accounting firm to attest to, such internal
controls as required by Section 404 of the Sarbanes-Oxley
Act of 2002. While we anticipate being compliant with the
requirements of Section 404 for our year ending
December 31, 2009, we cannot be certain as to the timing of
the completion of our evaluation, testing and remediation
actions or the impact of the same on our operations. If we are
not able to implement the requirements of Section 404 in a
timely manner or with adequate compliance, our independent
registered public accounting firm may not be able to certify as
to the adequacy of our internal control over financial
reporting. This result may cause us to be unable to report on a
timely basis and thereby subject us to adverse regulatory
consequences, including sanctions by regulatory authorities,
such as the Securities and Exchange Commission. Our failure to
comply with Section 404 on a timely basis could result in
the diversion of management time and attention from operating
our business and the expenditure of substantial financial
resources on remediation activities. In addition, such failure
may make it more difficult and costly to attract and retain
independent board and audit committee members. As a result,
there could be a negative reaction in the financial markets due
to a loss of confidence in the reliability of our financial
statements. We could also suffer a loss of confidence in the
reliability of our financial statements if our independent
registered public accounting firm reports a material weakness in
our internal control over financial reporting. We will incur
incremental costs in order to improve our internal control over
financial reporting and comply with Section 404, including
increased auditing and legal fees and costs
associated with hiring additional accounting and administrative
staff. Any such actions could increase our operating expenses
and negatively affect our results of operations.
Risks Related To
The Auction Process For This Offering
Potential
investors should not expect to sell our shares for a profit
shortly after our common stock begins trading.
A principal factor in determining the initial public offering
price for the shares sold in this offering will be the clearing
price resulting from an auction conducted by us and the
underwriters. The clearing price is the highest price at which
all of the shares offered, including the shares subject to the
over-allotment
option, may be sold to potential investors. Although we and the
underwriters may elect to set the initial public offering price
below the clearing price, the public offering price may be at or
near the clearing price. If there is little to no demand for our
shares at or above the initial public offering price once
trading begins, the price of our shares could decline following
our initial public offering. If your objective is to make a
short-term profit by selling the shares you purchase in the
offering shortly after trading begins, you should not submit a
bid in the auction.
Some bids made at
or above the initial public offering price may not receive an
allocation of shares.
The underwriters may require that bidders confirm their bids
before the auction for our initial public offering closes. If a
bidder is requested to confirm a bid and fails to do so within a
required time frame, that bid will be rejected and will not
receive an allocation of shares even if the bid is at or above
the initial public offering price. Further, if the auction
process leads to a pro rata reduction in allocated shares and a
rounding down of share allocations pursuant to the rules of the
auction, a bidder may not receive any shares in the offering
despite having a bid at or above the initial public offering
price range. In addition, we, in consultation with the
underwriters, may determine, in our sole discretion, that some
bids that are at or above the initial public offering price are
manipulative or disruptive to the bidding process or are not
creditworthy, or otherwise not in our best interest, in which
case such bids will be reduced or rejected. Other conditions for
valid bids, including suitability, eligibility and account
opening and funding requirements of participating dealers may
vary. As a result of these varying requirements, a bidder may
have its participation or bid rejected by the underwriters or a
participating dealer while another bidder’s identical bid
is accepted.
Potential
investors may receive a full allocation of the shares for which
they bid if their bids are successful and should not bid for
more shares than they are prepared to purchase.
If the initial public offering price is at or near the clearing
price for the shares offered in this offering, the number of
shares represented by successful bids will equal or nearly equal
the number of shares offered by this prospectus. Successful
bidders may therefore be allocated all or nearly all of the
shares that they bid for in the auction. Therefore, we caution
investors against submitting a bid that does not accurately
represent the number of shares of its common stock that they are
willing and prepared to purchase.
Our initial
public offering price may have little or no relationship to the
price that would be established using traditional valuation
methods, and therefore, the initial public offering price may
not be sustainable once trading begins.
The public offering price for this offering is ultimately
determined by negotiation between the underwriters and us after
the auction closes and does not necessarily bear any direct
relationship to our assets, current earnings or book value or to
any other established criteria of value, although these factors
are considered in establishing the initial public offering
price. As a result, our initial public offering price may not be
sustainable once trading begins, and the price of our common
stock may decline.
Risks Related to
Our Common Stock and this Offering
There is no
existing market for our common stock, and we do not know if one
will develop to provide you with adequate liquidity.
Prior to this offering, there has not been a public market for
shares of our common stock. We intend to apply to list as common
stock on the NYSE Alternext. However, we cannot predict the
extent to which investor interest in our company will lead to
the development of an active trading market on the NYSE
Alternext or otherwise or how liquid that market may become. If
an active trading market does not develop, you may have
difficulty selling any of our common stock that you purchase.
The initial public offering price may not be indicative of the
price at which our common stock will trade following completion
of this offering. Consequently, the market price of shares of
our common stock may decline below the initial public offering
price, and you may not be able to resell your shares of our
common stock at or above the price you paid in this offering.
We expect that
our stock price will fluctuate significantly, and you may not be
able to resell your shares at or above the initial public
offering price.
Securities markets worldwide experience significant price and
volume fluctuations. This market volatility as well as general
economic, market or political conditions could reduce the market
price of our common stock in spite of our operating performance.
The trading price of our common stock is likely to be volatile
and subject to wide price fluctuations in response to various
factors, including:
•
market conditions in the broader stock market in general, or in
the alternative fuel industry in particular;
•
actual or anticipated fluctuations in our quarterly financial
and operating results;
•
introduction of new products and technologies by us or our
competitors;
•
issuance of new or changed securities analysts’ reports or
recommendations;
•
the building of new facilities and the operation of new and
existing facilities;
•
sales of large blocks of our stock;
•
additions or departures of key personnel;
•
regulatory developments;
•
litigation and governmental investigations; and
•
economic and political conditions or events.
These and other factors may cause the market price and demand
for our common stock to fluctuate substantially, which may limit
or prevent investors from readily selling their shares of common
stock and may otherwise negatively affect the liquidity of our
common stock. In addition, in the past, when the market price of
a stock has been volatile, holders of that stock have often
instituted securities class action litigation against the
company that issued the stock. If any of our stockholders
brought a lawsuit against us, we could incur substantial costs
defending the lawsuit. Such a lawsuit could also divert the time
and attention of our management from our business, which could
significantly harm our profitability and reputation.
If securities
analysts do not publish research or reports about our business,
our stock price could decline.
The trading market for our common stock will in part be
influenced by the research and reports that industry or
securities analysts publish about us or our business. If one or
more of these analysts cease coverage of our company or fail to
publish reports on us regularly, we could lose visibility in the
financial markets, which in turn could cause our stock price or
trading volume to decline. Moreover, if one or more of the
analysts who cover our company downgrade our stock, or if our
results of operations do not meet their expectations, our stock
price could decline.
If a substantial
number of shares become available for sale and are sold in a
short period of time, the market price of our common stock could
decline.
If our existing stockholders sell substantial amounts of our
common stock in the public market following this offering, the
market price of our common stock could decrease significantly.
The perception in the public market that our existing
stockholders might sell shares of common stock could also
depress our market price. These sales, or the possibility that
these sales may occur, also might impede our ability to raise
capital through the issuance of additional shares of our common
stock or other equity securities at a time and at a price we
deem appropriate. We, our officers, directors and holders of
substantially all of our common stock have agreed with the
underwriters, subject to certain exceptions, not to dispose of
or hedge any of their common stock or securities convertible
into or exchangeable for shares of common stock during the
period from the date of this prospectus continuing through the
date 360 days, 270 days or 180 days, as
applicable, after the date of this prospectus, except with the
prior written consent of the underwriters’ representatives.
See “Plan of Distribution.”
Upon completion of this offering, we will have
12,389,791 shares of common stock outstanding. In addition,
exercisable options for 249,560 shares of our common stock
will be held by our employees and others. Our directors,
executive officers and additional other holders of our common
stock will be subject to the
lock-up
agreements described in “Plan of Distribution” and the
Rule 144 holding period requirements described in
“Shares Eligible for Future Sale.” After all of these
lock-up
periods have expired and the holding periods have elapsed,
8,457,412 additional shares will be eligible for sale in the
public market. The market price of shares of our common stock
may drop significantly when the restrictions on resale by our
existing stockholders lapse.
Insiders will
continue to have substantial control over us after this offering
and could limit your ability to influence the outcome of key
transactions, including a change of control.
Our principal stockholders, directors and executive officers and
entities affiliated with them will own approximately 61.7% of
the outstanding shares of our common stock after this offering.
As a result, these stockholders, if acting together, would be
able to influence or control matters requiring approval by our
stockholders, including the election of directors and the
approval of mergers or other extraordinary transactions. They
may also have interests that differ from yours and may vote in a
way with which you disagree and which may be adverse to your
interests. The concentration of ownership may have the effect of
delaying, preventing or deterring a change of control of our
company, could deprive our stockholders of an opportunity to
receive a premium for their common stock as part of a sale of
our company and might ultimately affect the market price of our
common stock.
Some provisions
of Delaware law, our amended and restated certificate of
incorporation, our amended and restated bylaws and our license
agreement with AB-CWT may deter third parties from acquiring
us.
Provisions contained in our amended and restated certificate of
incorporation, amended and restated bylaws and our license
agreement with AB-CWT and in Delaware law could make it more
difficult for a third party to acquire us. Provisions of our
amended and restated certificate of incorporation, amended and
restated bylaws and Delaware law impose various procedural and
other requirements, which could make it more difficult for
stockholders to effect certain corporate actions. Our amended
and restated certificate of incorporation and bylaws provide
for, among other things:
•
restrictions on the ability of our stockholders to fill a
vacancy on the board of directors;
•
the authorization of undesignated preferred stock, the terms of
which may be established and shares of which may be issued
without stockholder approval; and
•
advance notice requirements for stockholder proposals.
These anti-takeover defenses could discourage, delay or prevent
a transaction involving a change in control of our company.
These provisions could also discourage proxy contests and make
it
more difficult for stockholders to elect directors of their
choosing and cause us to take other corporate actions than those
stockholders desire.
Further, we are the exclusive, worldwide licensee of patents and
patent applications, a subset of which are directed to our
proprietary TCP technology. We license these patents from
AB-CWT, and AB-CWT has the right to terminate this license in
the event we transfer or assign any of our exclusively licensed
rights without prior written consent from AB-CWT, which may
deter third parties from acquiring us.
We do not
anticipate paying any cash dividends in the foreseeable
future.
We currently intend to retain our future earnings, if any, for
the foreseeable future, to repay future indebtedness and to fund
the development and growth of our business. We do not intend to
pay any dividends in the foreseeable future to holders of our
common stock. As a result, capital appreciation in the price of
our common stock, if any, will be your only source of gain on an
investment in our common stock.
New investors in
our common stock will experience immediate and substantial book
value dilution after this offering.
The initial public offering price of our common stock will be
substantially higher than the pro forma net tangible book value
per share of the outstanding common stock immediately after the
offering. Based on an assumed initial public offering price of
$10.00 per share, the midpoint of the price range set forth on
the cover of this prospectus, and our net tangible book value as
of September 30, 2008, if you purchase our common stock in
this offering you will pay more for your shares than the current
net tangible book value and you will suffer immediate dilution
of $5.73 per share in pro forma as adjusted net tangible
book value. As a result of this dilution, investors purchasing
stock in this offering may receive significantly less than the
full purchase price that they paid for the shares purchased in
this offering in the event of a liquidation because you may pay
a price per share that substantially exceeds the book value of
our assets after subtracting our liabilities. If we grant
options in the future to our employees, and those options are
executed or other issuances of common stock are made, there will
be further dilution.
This prospectus contains forward-looking statements that are
subject to risks and uncertainties. All statements other than
statements of historical fact included in this prospectus are
forward-looking statements. Forward-looking statements give our
current expectations and projections relating to our financial
condition, results of operations, plans, objectives, future
performance and business. You can identify forward-looking
statements by the fact that they do not relate strictly to
historical or current facts. These statements may include words
such as “anticipate,”“estimate,”“expect,”“project,”“plan,”“intend,”“believe,”“may,”“should,”“can have,”“likely” and
other words and terms of similar meaning or the negative of such
terms.
These forward-looking statements are based on management’s
expectations and beliefs concerning future events impacting us
made in light of our industry experience and on our perceptions
of historical trends, current conditions, expected future
developments and other factors we believe are appropriate under
the circumstances. As you read and consider this prospectus, you
should understand that these statements are not guarantees of
performance or results. They involve risks, uncertainties (some
of which are beyond our control) and assumptions. Although we
believe that these forward-looking statements are based on
reasonable assumptions, you should be aware that many factors
could affect our actual financial results and cause them to
differ materially from those anticipated in the forward-looking
statements. These factors include, among others:
•
our limited operating history;
•
our history of losses;
•
our inability to implement our expansion strategy;
•
our inability to obtain financing to implement our expansion
strategy;
•
our inability to adequately reduce our cash production costs;
•
our inability to protect our proprietary technology;
•
increased construction costs making a new facility too expensive
to build or unprofitable to operate;
•
start-up
problems at new facilities that could result in high costs,
delayed operations or inability to operate;
•
our inability to obtain sufficient feedstock to operate our
facilities profitably or at full capacity; and
•
the other factors described under “Risk Factors” and
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations.”
There may be other factors that may cause our actual results to
differ materially from the forward-looking statements.
Because of these factors, we caution that you should not place
undue reliance on any of our forward-looking statements.
Further, any forward-looking statement speaks only as of the
date on which it is made. New risks and uncertainties arise from
time to time, and it is impossible for us to predict those
events or how they may affect us. Except as required by law, we
have no duty to, and do not intend to, update or revise the
forward-looking statements in this prospectus after the date of
this prospectus.
This prospectus also contains market data related to our
business and industry. This market data includes projections
that are based on a number of assumptions. If these assumptions
turn out to be incorrect, actual results may differ from the
projections based on these assumptions. As a result, our markets
may not grow at the rates projected by these data, or at all.
The failure of these markets to grow at these projected rates
may have a material adverse effect on our business, financial
condition, results of operations and the market price of our
common stock.
We estimate that the net proceeds from the sale by us of the
shares of common stock being offered hereby, after deducting
(i) underwriting discounts and commissions
(ii) estimated expenses payable by us in connection with
this offering and (iii) repayment of the promissory note
issued to Weil, Gotshal & Manges LLP described below,
will be approximately $24.5 million, assuming an initial
public offering price of $10.00 per share, the midpoint of the
estimated price range set forth on the cover page of this
prospectus. We intend to use approximately $2.1 million of
the net proceeds of this offering to repay the promissory notes,
including accrued interest, issued to Sterling Acquisitions, LLC
in the principal amount of $615,000, Jerome Finkelstein in
the principal amount of $417,500, Harold Finkelstein in the
principal amount of $417,500, Gas Technology Institute in
the principal amount of $150,000 and Eizel 33, LLC in the
principal amount of $400,000. Each of the foregoing promissory
notes has an interest rate of 18% per annum and will mature on
the earlier to occur of March 31, 2009 or the consummation
of this offering. These promissory notes were issued in
connection with
short-term
borrowings used for working capital. See “Certain
Relationships and related Person
Transactions-Certain
Related Party Transactions.” We intend to use approximately
$1.0 million of the proceeds of this offering to repay the
promissory note, including accrued interest, issued to Weil,
Gotshal & Manges LLP in lieu of payment of accrued legal
fees and expenses. The estimated net proceeds of approximately
$24.5 million are net of this payment. The promissory note
issued to Weil, Gotshal & Manges LLP has an interest rate
of 3% per annum and will mature on the earlier to occur of
March 31, 2009 or the consummation of this offering. See
“Legal Matters.” We intend to use the remaining net
proceeds of this offering for general corporate and working
capital purposes, including the initial development of new
facilities. We currently have no agreements or commitments with
respect to the development or construction of new facilities
and, accordingly, we are unable to estimate the amount of
proceeds that will be used for any particular project. Pending
the use of the net proceeds described above, we intend to invest
the net proceeds in short-term investment grade,
interest-bearing instruments.
We have never declared or paid cash dividends on our common
stock. We currently intend to retain earnings, if any, to
finance the growth and development of our business, and we do
not expect to pay any cash dividends on our common stock in the
foreseeable future. Any decision to declare and pay dividends in
the future will be at the discretion of our board of directors
and will depend on many factors, including general economic and
business conditions, our strategic plans, our financial results
and condition, legal requirements, contractual restrictions and
other factors as our board of directors deems relevant.
The following table sets forth our cash and cash equivalents and
our capitalization as of September 30, 2008 on (i) an
actual basis, after giving effect to the seven for one stock
split and a subsequent one for three reverse stock split of our
common stock, (ii) a pro forma basis after giving effect to:
•
the completion of a secured debt and warrant financing for
aggregate net proceeds of $2.0 million, which was completed
in December 2008;
•
the automatic conversion of all outstanding shares of preferred
stock into 455,189 shares of common stock in connection
with this offering; and
•
our amended and restated certificate of incorporation, which
will be in effect prior to the completion of this offering;
and (iii) a pro forma as adjusted basis after giving effect
to:
•
the sale by us of 2,750,000 shares of our common stock in
this offering, assuming an initial public offering price of
$10.00 per share, the midpoint of the estimated price range
shown on the cover page of this prospectus, after deducting
estimated underwriting discounts and commissions and estimated
offering expenses;
•
the receipt of the net proceeds from this offering; and
•
the application of the proceeds, including the repayment of the
promissory note issued to Weil, Gotshal & Manges LLP
and the repayment of the promissory notes issued to certain
affiliates in connection with
short-term
borrowings.
This table should be read in conjunction with “Use of
Proceeds,”“Selected Historical Consolidated Financial
Data,”“Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and our
consolidated financial statements and the related notes thereto
included elsewhere in this prospectus.
Preferred stock, par value $0.01 per share (445,081 shares
authorized, 195,081 shares issued and outstanding;
445,081 authorized, no shares issued and outstanding,
pro forma and pro forma as adjusted)
$
2
$
—
$
—
Common Stock, par value $0.01 per share (150,000,000 shares
authorized, 9,184,602 shares issued and outstanding,
actual; 150,000,000 shares authorized, 9,639,791 issued and
outstanding, pro forma; 150,000,000 shares authorized,
12,389,791 shares issued and outstanding, pro forma as
adjusted)
92
97
124
Additional paid-in capital
146,090
146,579
171,052
Accumulated deficit
(117,800
)
(117,800
)
(118,292
)
Total stockholders’ equity
28,384
28,876
52,884
Total liabilities and stockholders’ equity
$
33,513
$
35,513
$
58,013
(1)
To the extent we change the number
of shares of common stock we sell in this offering from the
shares we expect to sell or we change the initial public
offering price from the $10.00 per share assumed initial public
offering price, or any combination of these events occur, our
net proceeds from this offering and as adjusted additional
paid-in capital may increase or decrease. A $0.25 increase
(decrease) in the assumed initial public offering price per
share of the common stock, assuming no change in the number of
shares of common stock to be sold, would increase (decrease) the
net proceeds that we receive in this offering and our as
adjusted additional paid-in capital by $687,500 and an increase
(decrease) of 1,000,000 shares from the expected number of
shares to be sold in this offering, assuming no change in the
assumed initial public offering price per share, would increase
(decrease) each of the net proceeds from this offering and our
as adjusted common stock and paid-in capital by approximately
$10.0 million.
If you invest in our common stock in this offering, your
ownership interest will be diluted to the extent of the
difference between the initial public offering price per share
and the pro forma as adjusted net tangible book value per share
of common stock immediately upon the completion of this offering.
Dilution results from the fact that the per share offering price
of the common stock is substantially in excess of the book value
per share attributable to the existing stockholders for the
presently outstanding stock. Our net tangible book value after
giving effect to the seven for one stock split and a subsequent
one for three reverse stock split of our common stock represents
our total tangible assets (total assets less intangible assets)
less total liabilities as of September 30, 2008, divided by
the total number of shares of common stock outstanding.
Pro forma net tangible book value adjusts net tangible book
value to give effect to: (i) the completion of a secured debt
and warrant financing for aggregate net proceeds of
$2.0 million, which was completed in December 2008; (ii)
the automatic conversion of all outstanding shares of preferred
stock into 455,189 shares of common stock in connection with
this offering; and (iii) our amended and restated
certificate of incorporation. Our pro forma net tangible book
value as of September 30, 2008 was $28.9 million, or
$3.00 per share.
After giving effect to (i) the sale by us of
2,750,000 shares of our common stock in this offering,
assuming an initial public offering price of $10.00 per share,
the midpoint of the estimated price range shown on the cover
page of this prospectus, after deducting estimated underwriting
discounts and commissions, estimated offering expenses and the
repayment of the promissory note issued to Weil, Gotshal &
Manges LLP; (ii) the receipt of the net proceeds from this
offering; and (iii) the repayment of the promissory notes
issued to certain affiliates in connection with the secured debt
and warrant financing, which was completed in December 2008, our
pro forma as adjusted net tangible book value as of
September 30, 2008 would have been approximately
$52.9 million, or $4.27 per share. This represents an
immediate increase in pro forma net tangible book value of
$1.27 per share to our existing stockholders and an
immediate dilution in net tangible book value of $5.73 per
share to new investors purchasing shares of common stock in this
offering at the initial offering price.
The following table illustrates this substantial and immediate
dilution to new investors on a per share basis:
Increase in pro forma net tangible book value per share
attributable to existing investors
1.27
Pro forma as adjusted net tangible book value per share after
this offering
4.27
Dilution per share to new investors
$
5.73
The following table summarizes, on the same pro forma basis as
of September 30, 2008, the total number of shares of our
common stock purchased from us, the total consideration paid to
us, assuming an initial public offering price of $10.00 per
share, the midpoint of the initial public offering
price range on the cover of this prospectus, the average price
per share paid to us by our existing stockholders and to be paid
by new investors purchasing shares of our common stock in this
offering.
Shares Purchased
Total Consideration
Average Price
Number
Percent
Amount
Percent
per Share
Existing stockholders
9,639,791
77.8
%
$
146,165,451
84.2
%
$
15.16
New investors
2,750,000
22.2
27,500,000
15.8
10.00
Total
12,389,791
100
%
$
173,665,451
100
%
The above discussion and tables:
•
exclude shares of our common stock reserved for future grants
under our compensation plans; and
•
assume no exercise of the underwriters’ option to purchase
up to 412,500 additional shares of our common stock.
If the underwriters’ option to purchase additional shares
of our common stock is exercised in full:
•
the increase in our pro forma as adjusted net tangible book
value per share attributable to existing investors purchasing
shares in this offering would be $0.18, the pro forma as
adjusted net tangible book value per share after this offering
would be $4.45 and the dilution in pro forma net tangible book
value per share to new investors would be $5.55;
•
the percentage of our common stock held by our existing
stockholders will decrease to approximately 75.3% of the total
outstanding amount of our common stock after this
offering; and
•
the percentage of our common stock held by new investors will
increase to approximately 24.7% of the total outstanding amount
of our common stock after this offering.
Assuming the number of shares offered by us, as set forth on the
cover of this prospectus, remains the same, after deducting
underwriting discounts and commissions and estimated offering
expenses payable by us, a $0.25 increase (decrease) in the
assumed initial public offering price of $10.00 per share, the
midpoint of the range set forth on the cover page of this
prospectus, would:
•
increase (decrease) in our pro forma as adjusted net tangible
book value per share after this offering by $0.06; and
•
increase (decrease) the total consideration paid by new
investors by $687,500.
In addition, we may choose to raise additional capital due to
market conditions or strategic considerations even if we believe
we have sufficient funds for our current or future operating
plans. To the extent that additional capital is raised through
the sale of equity or convertible debt securities, the issuance
of these securities could result in further dilution to our
stockholders.
The following table sets forth our selected historical
consolidated financial and other data for the periods and at the
dates indicated. The selected historical consolidated financial
data for the years ended December 31, 2005, 2006 and 2007
are derived from our audited consolidated financial statements
included elsewhere in this prospectus. The selected historical
financial data for the year ended December 31, 2004 is
derived from our audited consolidated financial statements that
are not included in this prospectus. The selected historical
financial data for the year ended December 31, 2003 is
derived from our unaudited financial statements that were not
included in this prospectus. The selected historical
consolidated financial data for the nine months ended
September 30, 2007 and 2008 are derived from our unaudited
consolidated financial statements included elsewhere in this
prospectus. In the opinion of management, the unaudited
consolidated financial statements have been prepared on the same
basis as the audited consolidated financial statements and
include all adjustments, consisting of normal recurring
adjustments, necessary for a fair presentation of our operating
results and financial position for those periods and as of such
dates. The results for any interim period are not necessarily
indicative of the results that may be expected for a full year.
The consolidated financial data for the year ended
December 31, 2005 reflects our acquisition of the portion
of the RES, our joint venture with ConAgra, that we did not
already own in July 2005. Prior to the RES acquisition we used
the equity method of accounting for our 50% investment in RES.
Commencing August 1, 2005, RES became a wholly-owned
subsidiary and is included in our consolidated financial
statements.
The results indicated below and elsewhere in this prospectus are
not necessarily indicative of our future performance. You should
read this information together with “Capitalization,”“Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and our consolidated
financial statements and related notes.
The following discussion should be read in conjunction with
the information contained elsewhere in this prospectus under the
caption “Selected Historical Consolidated Financial
Data,” and our consolidated financial statements and
related notes thereto. This discussion contains forward-looking
statements that are subject to known and unknown risks and
uncertainties. Actual results and the timing of events may
differ significantly from those expressed or implied in such
forward-looking statements due to a number of factors, including
those set forth in the sections entitled “Risk
Factors” and “Forward-Looking Statements” and
elsewhere in this prospectus.
Overview
We sell renewable diesel fuel oil and organic fertilizers which
we currently produce from animal and food processing waste using
TCP. TCP can convert a broad range of organic wastes, or
feedstock, including animal and food processing waste, trap and
low-value greases, mixed plastics, rubber and foam, into our
products. We began development of TCP in 1997. In 1999, we
commenced operations of our seven ton per day pilot facility for
animal and food processing waste located at our research and
development facility in Philadelphia, Pennsylvania. We commenced
development of our first production facility in Carthage,
Missouri in 2002. The Carthage facility was commissioned in
2005. From 2005 to 2007, we developed and refined the equipment,
procedures and processes at our Carthage facility to bring TCP
from demonstration status to production. Our Carthage facility
currently has the capacity to convert 78,000 tons of animal and
food processing waste into approximately 4 million to
9 million gallons of renewable diesel per year, depending
on the feedstock mix. We commenced commercial sales of our
renewable diesel in 2007. In the nine months ended
September 30, 2008, we produced approximately
1,095,000 gallons of renewable diesel. In 2007, we
commenced production of our fertilizers. In the nine months
ended September 30, 2008, we produced approximately 223,000
gallons of liquid nitrogen concentrate fertilizer and
approximately 3,300 tons of solid mineral phosphate
fertilizer. We commenced sales of our liquid nitrogen
concentrate fertilizer in the second quarter of 2008. We are in
our initial phase of introducing our solid mineral phosphate
fertilizer into the marketplace, and the costs of producing our
solid mineral phosphate fertilizer has been written off until a
market and pricing structure can be established.
In December 2000, we entered into a license agreement with
ConAgra for the development of TCP for the conversion of animal
and food processing waste into renewable diesel and fertilizers.
A license fee of $2.3 million was paid to us under that
agreement. Simultaneously, we entered into an exclusive joint
venture and formed Renewable Environmental Solutions, LLC., or
RES, with ConAgra Poultry Company, or CPC, as equal partners, to
commercialize the use of TCP under the license agreement with
our subsidiary Resource Recovery Corporation, or RRC, for
processing animal and food processing waste worldwide. In July
2003, CPC assigned its ownership interest in RES to ConAgra
Foods Refrigerated Foods Co., Inc., or CRF, in conjunction with
the sale of CPC to Pilgrim’s Pride Corporation. In July
2005, CRF’s 50% interest in RES, plus cash in the amount of
$2.0 million was exchanged for 978,689 shares of our
common stock and a warrant, expiring July 2010, to purchase
327,488 shares of our common stock at $30.54 per share. As
a result of this exchange, RES became our wholly-owned
subsidiary and the licensing agreement was terminated. The RES
acquisition was accounted for under the purchase method of
accounting. We allocated the purchase price to the tangible and
intangible assets and liabilities, which were recorded at their
respective fair values. The excess of cost over the fair value
of the identifiable assets and liabilities was recorded as
goodwill. In 2005, we recorded an impairment of goodwill of
$13.7 million, the entire amount of the purchase price of
the RES acquisition that was allocated to goodwill. During the
nine months ended September 30, 2008, we identified certain
property, plant and equipment which are no longer being utilized
due to process improvements implemented during 2008. We recorded
a charge for the remaining net book value of the assets of
approximately $1.2 million during the nine months ended
September 30, 2008. Prior to the RES acquisition, we used
the equity method of accounting for our
50% investment in RES and, as a result, we did not record
revenues or expenses from the operations of RES prior to the
acquisition and only recorded our portion of the net loss of
RES, $7.2 million, for the period in 2005 prior to the RES
acquisition. Beginning in August 1, 2005, the results of
operations of RES were consolidated into our results of
operations. Accordingly our results of operations for periods
prior to the RES acquisition are not comparable to subsequent
periods.
Our Carthage facility is located next to a Butterball turkey
processing plant, which is the principal source of our
feedstock. We have a supply agreement for turkey food processing
waste for our Carthage facility, which expires in May 2010.
Pursuant to our take or pay contract with Butterball, we paid
Butterball $1.3 million, $788,000, $1.7 million and
$2.7 million in 2005, 2006 and 2007 and the nine months
ended September 30, 2008, respectively.
We sell our renewable diesel in the industrial fuel oil market.
Through December 31, 2007, we sold approximately
3.1 million gallons of renewable diesel produced at our
Carthage facility. In 2008, we entered into agreements with two
customers for 100% of our current renewable diesel production
capacity. One customer, Schreiber, accounted for approximately
72.9% and 78.1% of our revenues in 2007 and the nine months
ended September 30, 2008, respectively. Dyno Nobel
accounted for approximately 14.3% of our revenues in the nine
months ended September 30, 2008. We commenced the sale of
our liquid nitrogen concentrate fertilizer in the second quarter
of 2008.
Our consolidated results of operations reflect principally the
activity in our Carthage facility, which has not operated at
full capacity for the following reasons:
•
design and construction deficiencies, including equipment
deficiencies;
•
limited availability of feedstock;
•
phased production
ramp-up
during the early operational period;
•
regulatory inspections and requirements; and
•
environmental testing.
Components of
Revenues and Expenses
Revenues. Our revenues are principally derived
from sales of our renewable diesel. We sell our renewable diesel
on a Btu pricing basis that is competitive with other burner
fuels such as diesel oil or natural gas. The average price per
gallon of renewable diesel we received in 2005, 2006 and 2007
and the nine months ended September 30, 2008 was $0.48,
$0.14, $0.64 and $1.19, respectively. Although we currently base
the price of our renewable diesel primarily on the prevailing
market price of natural gas, which is the principal industrial
boiler fuel used in the geographic market in which we sell our
renewable diesel, in the future we plan to sell our renewable
diesel in geographic markets where the principal industrial
boiler fuel is No. 2 Heating Oil and, accordingly, set the
price based on the prevailing market price for No. 2
Heating Oil in these markets. We sold approximately 367,000,
1.8 million, 911,000 and 684,000 gallons of our renewable
diesel, respectively, in 2005, 2006 and 2007 and the nine months
ended September 30, 2008. Sales of our renewable diesel
will be the principal source of revenues for the foreseeable
future. In the third quarter of 2008, we also generated revenues
from the sale of our liquid nitrogen concentrate fertilizer.
Revenues from the sale of fertilizer are accounted for on a cash
basis as collectability is uncertain. For the nine months ended
September 30, 2008, we sold approximately 235,000 gallons
of our liquid nitrogen concentrate fertilizer at an average
price per gallon of $0.28.
Cost of Goods Sold. Cost of goods sold
primarily consists of the cost of obtaining feedstock. Our
primary feedstock is the turkey food processing waste that we
obtain under our Butterball supply agreement. We also purchase
other animal and food processing waste and trap and low-value
greases, depending on availability and cost. In certain
circumstances, we do not have to pay for
feedstock or we receive payments from feedstock suppliers for
receiving and handling feedstock. To the extent that we receive
payments for handling such feedstock, the amounts we receive
will be recorded as a credit against our feedstock costs and
will reduce our costs of goods sold. We anticipate that the
volume cost of acquiring feedstock will decrease over time.
The other major components of cost of goods sold, which
principally relate to our Carthage facility, include:
•
salaries, benefits and other labor costs directly related to the
operation of our Carthage facility;
•
third-party contractor costs associated with facility
modifications and repairs;
•
utility and maintenance costs, including natural gas;
•
transportation costs for feedstock, renewable diesel and
fertilizer;
•
boiler conversion costs for new customers;
•
diversion and disposal costs related to the disposal of
contracted feedstock to landfill, when our facility is
non-operational and the cost of disposing of excess water in our
process; and
•
adjustments to the value of our renewable diesel inventory,
which is stated at the lower of cost or market.
We anticipate that our cost of goods sold will increase in
dollar terms as our revenues increase but will decrease as a
percentage of revenues over time as we (i) reduce our
feedstock costs, (ii) reduce our reliance on outside
contractors, (iii) increase our facility capacity
utilization, (iv) reduce our average inventory levels and
(v) reduce water disposal costs.
The principal performance metric that we use to evaluate our
costs of goods sold is our cash production cost per gallon of
renewable diesel. Our cash production cost per gallon is
calculated by dividing our total cost of goods sold less
non-cash charges, such as depreciation and amortization, by the
number of gallons of renewable diesel produced. For the nine
months ended September 30, 2008, our cash production cost
per gallon at our Carthage facility was $11.18. Our Carthage
facility is our first production facility and was initially
designed to demonstrate the viability and scalability of TCP.
Our Carthage facility was also initially designed to produce
commercial quantities of renewable diesel that would be
sufficient to demonstrate that customers would be willing to
purchase our renewable diesel if sufficient quantities were
available and that our renewable diesel meets performance
characteristics for use in industrial boilers. Our current cash
production cost reflects our relatively high feedstock costs due
to the commercial terms of our historical arrangements with
Butterball and the relatively low output provided by turkey food
processing waste, our current primary feedstock. In addition,
operational inefficiencies caused by the initial design of, and
sub-optimal performance of various equipment initially used at,
our Carthage facility limited the operational availability. This
required us to redesign our plant processes, install replacement
equipment and incur significant labor and maintenance costs.
These operational inefficiencies also required us to dispose of,
rather than process, our feedstock and incur related costs.
In the future, we believe our cash production cost will be lower
than our current cash production cost per gallon as we:
•
enter into contractual arrangements for feedstock on more
favorable terms;
•
purchase high yielding feedstock, such as beef and pork
processing waste and restaurant grease at favorable prices and
otherwise reduce our feedstock costs on a per gallon basis;
benefit from economies of scale resulting from the operation of
multiple, larger-scale facilities;
•
benefit from lower maintenance costs and improved operational
reliability at our new facilities which will be designed based
on the knowledge gained from the operation of our Carthage
facility; and
•
reduce our disposal costs for unused feedstock.
As a result of these factors, we estimate that our cash
production cost, including the cost of feedstock, of renewable
diesel will ultimately be in the range of $0.85 to $1.60 per
gallon for our larger production facilities. We believe that our
cost of feedstock conversion, which we define as our cash
production cost less the cost of feedstock, will be between
$0.30 and $0.80 per gallon of renewable diesel for our larger
production facilities. Our cash production cost does not give
effect to the $1.00 per gallon renewable diesel mixture tax
credit that we receive from the U.S. government for each
gallon of renewable diesel produced at our facilities that we
sell in the United States. The renewable diesel mixture tax
credit is scheduled to expire at the end of 2009. Net cash costs
per gallon outside of the United States may be materially
different due to variances in feedstock costs, energy costs and
the availability and level of tax credits and cash incentives.
The demand for our renewable diesel is still emerging and does
not currently coincide with our production cycle. While we are
seeking to increase our customer base and demand for our
renewable diesel, we are currently required to hold excess
renewable diesel in inventory. Inventory items are stated at the
net amount that we expect to realize from the sale of our
inventory, which is determined based on the lower of production
cost or the market value of the renewable diesel held in
inventory and is charged to cost of goods sold. Since our
production costs are relatively high at our current stage of
development and the price we receive for our renewable diesel in
the market is relatively low given that the demand and market
acceptance for our renewable diesel is still emerging, the
adjustments to the value of our renewable diesel inventory have
been significant. We expect that the adjustment will decrease in
future periods as we decrease our production costs. In addition,
as demand for our renewable diesel and fertilizers increase, we
anticipate that the market value of our products will increase
and will ultimately exceed our production costs, further
reducing or eliminating the inventory adjustment.
Selling, General and Administrative
Expenses. Selling, general and administrative
expenses consist primarily of salaries and benefits for general
and administrative and sales and marketing personnel, sales and
marketing costs, rent and other occupancy costs, travel and
entertainment costs and professional fees. We anticipate adding
office space in the next several years, which will increase our
rent and associated occupancy costs. We expect our selling,
general and administrative expenses to increase significantly as
we hire additional personnel to manage our anticipated facility
expansion. We also anticipate incurring additional expenses as a
public company following the completion of this offering,
including additional legal and corporate governance expenses,
such as costs associated with compliance with Section 404
of the Sarbanes-Oxley Act of 2002, salary and payroll-related
costs for additional accounting and internal audit personnel,
and listing and transfer agent fees.
Research and Development Expenses. Research
and development expenses consist primarily of salaries and
benefits for our research and development personnel and costs
associated with operating our engineering research facility and
pilot facility in Philadelphia. We anticipate that research and
development expenses will increase modestly as we develop TCP to
handle other types of feedstock and seek to improve the
performance and efficiency of TCP.
Other Operating Expenses. Other operating
expenses consist of impairment to property, plant and equipment
and impairment of goodwill associated with the RES acquisition.
As of September 30, 2008, we had no goodwill on our balance
sheet.
Other Income. Other income consists primarily
of renewable diesel mixture tax credit and interest income. We
receive a $1.00 per gallon excise renewable diesel mixture tax
credit from the U.S. government for each gallon of
renewable diesel we sell in the United States. Because we have
no fuel excise tax payable, we receive a direct cash payment in
the amount of the renewable diesel mixture tax credit. Interest
income is based on the amount of our invested cash balances and
prevailing interest rates. We also record grant monies that we
receive in other income.
Critical
Accounting Policies
Our consolidated financial statements included in this
prospectus have been prepared in accordance with accounting
principles generally accepted in the United States. Note 1
of our consolidated financial statements includes a summary of
our significant accounting policies, certain of which require
the use of estimates and assumptions. Accounting estimates are
an integral part of the preparation of financial statements and
are based on judgments by management using its knowledge and
experience about the past and current events and assumptions
regarding future events, all of which we consider to be
reasonable. These judgments and estimates reflect the effects of
matters that are inherently uncertain and that affect the
carrying value of our assets and liabilities, the disclosure of
contingent liabilities and reported amounts of expenses during
the reporting period.
The accounting estimates and assumptions discussed in this
section are those that involve significant judgments and the
most uncertainty. Changes in these estimates or assumptions
could materially affect our financial position and results of
operations.
Inventories
Our inventories are stated at the lower of cost (determined on a
first-in,
first-out basis) or market. We evaluate our inventories to
determine excess or slow moving products based on quantities on
hand, current orders and expected future demand. Inventory
items, of which we have an excess supply, are stated at the net
amount that we expect to realize from the sale of such products.
The difference between our carrying cost and the net amount we
expect to realize from the sale of our inventory, which is
determined based on the lower of production cost or the market
value of the renewable diesel held in inventory, is charged to
cost of sales.
Impairment of
Long-Lived Assets
We account for our investments in long-lived assets in
accordance with Statement of Financial Accounting Standards, or
SFAS, No. 144, “Accounting for the Impairment or
Disposal of Long-Lived Assets,” or SFAS No. 144.
SFAS No. 144 requires a company to review its
long-lived assets for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may
not be recoverable. Factors we consider important, which could
trigger an impairment review, include, among others, the
following:
•
a significant adverse change in the extent or manner in which a
long-lived asset is being used;
•
a significant adverse change in the business climate that could
affect the value of a long-lived asset; and
•
a significant decrease in the market value of assets.
We periodically evaluate the recoverability of the net carrying
value of our long lived assets. An impairment loss is recognized
when the carrying value of the long-lived assets exceeds its
undiscounted future cash flows and its fair value. A loss on
impairment would be recognized through a charge to operating
loss.
In early 2005, RES identified certain facility equipment that
was no longer in usable condition or related to an operating
activity that it decided not to pursue. Accordingly, RES
recorded an impairment loss of $5.0 million in 2005. The
assets that were deemed to be impaired were determined to have
no value to RES.
Income
Taxes
We account for income taxes using the liability method of
accounting for income taxes in accordance with
SFAS No. 109, “Accounting for Income Taxes,”
or SFAS 109. Under this method, deferred income taxes are
recognized for the future tax consequence of differences between
the tax and financial reporting basis of assets and liabilities
at each reporting period. A valuation allowance is established
to reduce deferred tax assets to the amounts expected to be
realized.
On January 1, 2007, we adopted Financial Accounting
Standards Board, or FASB, Interpretation No. 48,
“Accounting for Uncertainty in Income Taxes,” or
FIN 48, which clarifies the accounting for uncertainty in
income taxes recognized in the financial statements in
accordance with SFAS 109. The interpretation prescribes a
recognition threshold and measurement attribute for the
financial statement recognition and measurement of a tax
position taken or expected to be taken in a tax return. It also
provides guidance on derecognizing, classification, interest and
penalties, accounting in interim periods, disclosure and
transition. We believe that our income tax filing positions and
deductions will be sustained on audit and do not anticipate any
adjustments that will result in a material change to our
financial position. However, we cannot predict with certainty
the interpretations or positions that tax authorities may take
regarding specific tax returns filed by us and, even if we
believe our tax positions are correct, we may determine to make
settlement payments in order to avoid the costs of disputing
particular positions taken. No reserves for uncertain income tax
positions have been recorded pursuant to FIN 48. In
addition, we did not record a cumulative effect adjustment
related to the adoption of FIN 48.
Stock-Based
Compensation
Effective January 1, 2006, we adopted
SFAS No. 123(R), “Share-Based Payment,” or
SFAS 123(R), and related interpretations, which superseded
the provisions of Accounting Principles Board Opinion
No. 25, “Accounting for Stock Issued to
Employees,” or APB 25, and related interpretations.
SFAS 123(R) requires that all stock-based compensation be
recognized as an expense in the financial statements and that
such cost be measured at the fair value of the award.
SFAS 123(R) was adopted using the modified prospective
method, which requires us to recognize compensation expense on a
prospective basis. Therefore, prior period financial statements
have not been restated. Under this method, in addition to
reflecting compensation expense for new share-based awards,
expense is also recognized to reflect the remaining service
period of awards that had been granted in prior periods.
With the adoption of SFAS 123(R), we are required to record
the fair value of stock-based compensation awards as an expense.
In order to determine the fair value of stock options on the
date of grant, we utilize the Black-Scholes option-pricing
model. Inherent in this model are assumptions related to
expected stock-price volatility, option life, risk-free interest
rate and dividend yield. While the risk-free interest rate and
dividend yield are less subjective assumptions, typically based
on factual data derived from public sources, the expected
stock-price volatility and option life assumptions require a
greater level of judgment which makes them critical accounting
estimates. We use an expected stock-price volatility assumption
which is primarily based on the average implied volatility of
the stock of a group of comparable alternative energy companies,
whose stocks are publicly traded.
The following table sets forth the amount of expense related to
stock-based payment arrangements included in specific line items
in the accompanying consolidated statement of operations for the
following periods:
As of December 31, 2007, there was $208,330 of total
unrecognized compensation cost related to nonvested, stock-based
compensation granted under our stock option and restricted stock
plans, which will be recognized using the fair value method over
a weighted average remaining life of approximately
1.5 years.
On August 11, 2008, we issued options to purchase 210,466
shares of common stock of which options to purchase 110,833
shares of common stock are performance based. We determined the
fair value of the stock options using the Black-Scholes option
pricing model with the following assumptions: fair market value
of common stock of $26.25, exercise price of $30.54, risk free
interest of 3.27%, volatility of 65%, dividend yield of $0 and
life of five years. The fair market value of common shares was
determined using a discounted cash flow approach that uses
recent historical and projected cash flow, comparables to
similar companies and certain discount factors based on
comparable companies. The non-performance based stock options
vest immediately upon issuance. As such, we have recorded an
expense of approximately $1.4 million during the nine
months ended September 30, 2008.
Revenue
Recognition
We recognize revenue on the sale of our products when title and
risk of loss has passed to our customer, the sales price is
fixed or determinable and collectibility is reasonably assured,
which is generally upon shipment to the customer.
In accordance with SFAS No. 142, “Goodwill and
Other Intangible Assets,” or SFAS 142, we review the
carrying value of goodwill annually and whenever indicators of
impairment were present. We measure impairment losses by
comparing the carrying value of our reporting units to the fair
value of our reporting units determined using a discounted cash
flow method.
At December 31, 2005, we reviewed the goodwill resulting
from the acquisition of RES and determined that the value was
fully impaired. We followed the provisions of
SFAS No. 142, “Goodwill and Other Intangible
Assets,” or SFAS 142, and performed our annual
goodwill impairment test on the first day of the fourth quarter
of 2005. The goodwill of RES was determined to be impaired as
the carrying amount of RES exceeded its estimated fair value.
The fair value was determined using a discounted cash flows
method.
Total Revenues. Revenues increased 77.9% to
$863,000 for the nine months ended September 30, 2008 from
$485,000 for the nine months ended September 30, 2007. The
increase was attributable to increased sales to an existing
customer pursuant to an agreement entered into with Schreiber in
March 2008, sales to a new customer pursuant to an agreement
entered into with Dyno Nobel in May 2008, and an increase in the
price of our renewable diesel due to an increase in the price of
natural gas. In the nine months ended September 30, 2008,
we sold approximately 684,000 gallons of renewable diesel at an
average price per gallon of $1.19, without giving effect to the
renewable diesel mixture tax credit. In the nine months ended
September 30, 2007, we sold approximately 768,000 gallons
of renewable diesel for an average price of $0.63 per gallon,
without giving effect to the renewable diesel mixture tax
credit. In addition, during the nine months ended
September 30, 2008, we sold approximately 235,000 gallons
of our liquid nitrogen concentrate fertilizer at an average
price of $0.28 per gallon. Fertilizer sales are recognized on a
cash basis due to the uncertainty in collectability and
represented 7.6% of revenues, or $65,000, for the nine months
ended September 30, 2008.
Cost of Goods Sold. Cost of goods sold
increased 20.8% to $14.5 million for the nine months ended
September 30, 2008 from $12.0 million for the nine
months ended September 30, 2007. The increase was
attributable to increased feedstock, disposal and transportation
costs, as well as an increase in cost of natural gas. We
produced approximately 1,095,000 gallons of renewable diesel for
the nine months ended September 30, 2008 from
825,000 gallons of renewable diesel for the nine months
ended September 30, 2007. For the nine months ended
September 30, 2008, feedstock, disposal and transportation
costs totaled $3.6 million and plant operating expenses
totaled $10.9 million. For the nine months ended
September 30, 2007, feedstock, disposal and transportation
costs totaled $3.0 million and plant operating expenses
totaled $9.0 million. The cost of natural gas used to
operate our Carthage facility as a percentage of cost of goods
sold was 6.2%, or $893,000, for the nine months ended
September 30, 2008 as compared to 6.9%, or $827,000, for
the nine months ended September 30, 2007.
Selling, General and Administrative
Expenses. Selling, general, and administrative
expenses increased 26.2% to $5.3 million for the nine
months ended September 30, 2008 from $4.2 million for
the nine months ended September 30, 2007. The increase was
principally due to increased
stock-based
compensation expense from the issuance of stock options on
August 11, 2008. In 2007, we incurred less substantial
professional fees related to a proposed financing transaction
that was not completed.
Research and Development Expenses. Research
and development expenses remained relatively consistent and was
$878,000 for the nine months ended September 30, 2008 as
compared to $870,000 for the nine months ended
September 30, 2007. The increase was a result of the timing
of research and development activities.
Other Income. Other income decreased 38.0% to
$989,000 for the nine months ended September 30, 2008 from
$1,596,000 for the nine months ended September 30, 2007.
The decrease was primarily due to approximately $400,000 in
grant monies which were received for the nine months ended
September 30, 2007 but were not received in the nine months
ended September 30, 2008. The renewable diesel mixture tax
credit decreased 11% to $684,000 for the nine months ended
September 30, 2008 from $768,000 for the nine months ended
September 30, 2007. Interest income received on our
available cash decreased $104,000, which was $219,000 for the
nine months ended September 30, 2008 compared to $323,000
for the nine months ended September 30, 2007. The decrease
was primarily due to a lower cash balance available for
investment.
Total Revenues. Revenues increased 125.7% to
$589,000 for the year ended December 31, 2007 from $261,000
for the year ended December 31, 2006. The increase was
attributable to $429,000 in sales to a new customer 2007. In
2007, we sold 911,000 gallons at an average price per gallon of
$0.64. In 2006, we sold approximately 1.8 million gallons
at an average price per gallon of $0.14. The average price per
gallon in 2006 was lower than 2007 because we discounted our
prices significantly in 2006 for off-specification fuel sold to
our customers. During the development and commissioning phases
of our Carthage facility and for periods thereafter, we were
unable to obtain consistent quantities of suitable feedstock
and, therefore, were unable to establish sales contracts with
large customers, which caused wide variations in our revenues.
Cost of Goods Sold. Cost of goods sold
decreased 3.1% to $15.9 million for the year ended
December 31, 2007 from $16.5 million for the year
ended December 31, 2006. The decrease was primarily a
result of reduction in diversion and disposal costs resulting
from improved reliability of our Carthage facility and the
availability of lower cost disposal options. For the year ended
December 31, 2007, cost of goods sold included retrofitting
the boiler for a new customer. We produced approximately
1.1 million gallons in 2007 as compared to 1.6 million
gallons in 2006. For the year ended December 31, 2007,
feedstock, disposal and transportation costs totaled
$4.0 million and facility operating expenses totaled
$12.0 million. For the year ended December 31, 2006,
feedstock, disposal and transportation costs totaled
$4.4 million and facility operating expenses totaled
$12.0 million. The cost of natural gas used to operate our
Carthage facility as a percentage of cost of goods sold was
7.0%, or $1.1 million, for the year ended December 31, 2007 as
compared to 6.7%, or $1.1 million, for the year ended December31, 2006.
Selling, General and Administrative
Expenses. Selling, general, and administrative
expenses decreased 9.3% to $5.3 million for the year ended
December 31, 2007 from $5.9 million for the year ended
December 31, 2006. The decrease was a result of reduced
salary costs due to management personnel changes.
Research and Development Expenses. Research
and development expenses decreased 30.1% to $1.2 million
for the year ended December 31, 2007 from $1.7 million
for the year ended December 31, 2006. The decrease was
primarily the result of costs in 2006 associated with the
development of TCP to handle other feedstock which were not
incurred in 2007.
Other Income. Other income decreased 9.4% to
$2.0 million for the year ended December 31, 2007 from
$2.2 million for the year ended December 31, 2006. The
decrease was
primarily due to lower renewable diesel mixture tax credit
payments as a result of the decrease in gallons of renewable
diesel sold in 2007. Renewable diesel mixture tax credit
decreased to $911,000 in 2007 from $1.8 million in 2006.
This decrease was offset in part by the increase in interest
income, which was $564,000 in 2007 compared to $192,000 in 2006,
and an increase of $400,000 in 2007 from the SEER grant.
Total Revenues. Revenues increased 96.2% to
$261,000 for the year ended December 31, 2006 from $133,000
for the year ended December 31, 2005. The increase was
attributable to increased sales of renewable diesel during 2006
and our accounting of the results of RES on an equity basis
rather than a consolidated basis for the first seven months of
2005. In 2006, we sold approximately 1.8 million gallons of
renewable diesel at an average price per gallon of $0.14. In
2005, we sold approximately 367,000 gallons at an average price
per gallon of $0.48.
Cost of Goods Sold. Cost of goods sold
increased 170.9% to $16.5 million for the year ended
December 31, 2006 from $6.1 million for the year ended
December 31, 2005. Prior to August 2005, we did not record
costs of goods sold. The cost of goods sold incurred prior to
August 2005 was recorded by RES. We produced approximately
1.6 million gallons in 2006 and 949,000 gallons in 2005.
For the year ended December 31, 2006, feedstock, disposal
and transportation costs totaled $4.4 million and facility
operating expenses totaled $12.0 million. For the year
ended December 31, 2005, feedstock, disposal and
transportation costs totaled $2.7 million and facility
operating expenses totaled $3.3 million. The cost of
natural gas used to operate our Carthage facility as a
percentage of cost of goods sold was 6.7%, or $1.1 million,
for the year ended December 31, 2006 as compared to 5.1%,
or $313,000, for the year ended December 31, 2005.
Selling, General and Administrative
Expenses. Selling, general, and administrative
expenses increased 73.1% to $5.9 million for the year ended
December 31, 2006 from $3.4 million for the year ended
December 31, 2005. In 2005 we recorded selling, general and
administrative expenses for the five month period after the RES
acquisition, as compared to the full year in 2006.
Research and Development Expenses. Research
and development expenses decreased 15.5% to $1.7 million
for the year ended December 31, 2006 from $2.0 million
for the year ended December 31, 2005. The decrease was the
result of a decrease in staffing at our Philadelphia facility in
2006 which was offset in part by the fact that research and
development expenses for 2005 only reflect expenses for the five
month period after the RES acquisition.
Impairment of Long-lived Assets. The
impairment of long-lived assets increased to $157,000 for the
year ended December 31, 2006 from $1,000 for the year ended
December 31, 2005 and were both due to write-offs of
property, plant and equipment.
Impairment of Goodwill. There was no recorded
goodwill for the year ended December 31, 2006. The
impairment of goodwill for the year ended December 31, 2005
of $13.7 million related to impairment of goodwill
associated with the RES acquisition.
Other Income. Other income increased to
$2.2 million for the year ended December 31, 2006 from
$458,000 for the year ended December 31, 2005. The increase
in other income was primarily due to higher renewable diesel
mixture tax credit payments as a result of the increase in
gallons sold. Renewable diesel mixture tax credit totaled
$1.8 million in 2006, and we did not receive any renewable
diesel mixture tax credit payments in 2005. The remaining
variance in other income was the result of increased interest
income and the elimination of management fees paid by RES prior
to the RES acquisition.
We have incurred substantial operating losses since our
inception due in large part to expenditures for our research and
development activities, including the development of our
Carthage facility. Our recurring losses from operations raise
substantial doubt about our ability to continue as a going
concern. As of September 30, 2008 (unaudited) and
December 31, 2007, we had an accumulated deficit of
$117.8 million and $99.0 million, respectively. We
have financed our operations through the proceeds from the sales
of equity securities, revenues from sales of renewable diesel
and fertilizer, renewable diesel mixture tax credits and grants.
From 2005 through September 30, 2008, we raised an
aggregate of $75.7 million in private placements of equity
securities. In December 2008, we completed a secured debt and
warrant financing for aggregate net proceeds of
$2.0 million whereby we issued promissory notes in an
aggregate principal amount of $2.0 million that will mature
on the earlier to occur of March 31, 2009 or the consummation of
this offering and warrants to purchase an aggregate of
116,667 shares of our common stock at an exercise price of
$30.54 per share. The promissory notes are fully secured by all
of our assets and have an interest rate of 18% per annum. The
warrants are exercisable beginning January 2010 and expire in
December 2013. We determined the fair value of the warrants,
$653,333, using the Black-Scholes option-pricing model with the
following assumptions: a fair market value of common stock of
$11.00 per share, exercise price of $30.54 per share, risk free
interest rate of 1.47%, volatility of 88.13%, dividend yield of
$0 and life of five years. The promissory notes will be recorded
at their relative fair value of $1.5 million and the
warrants will be recorded as additional paid in capital at their
relative fair value of $492,462. Without the proceeds of this
offering, we will need to obtain additional debt and equity
financing to fund our operations after February 2009. We
believe that our existing cash, together with the proceeds of
this offering, will be sufficient to fund our operations through
2009. We will need to obtain additional debt and equity
financing to develop and construct new facilities and further
implement our expansion strategy in the future.
In December 2008, we issued a promissory note to Weil,
Gotshal & Manges LLP in the principal amount of
$1.0 million in lieu of payment of accrued legal fees and
expenses. The promissory note issued to Weil,
Gotshal & Manges LLP has an interest rate of 3% per
annum and will mature on the earlier occur of March 31,2009 or the consummation of this offering.
In connection with a permitting process for our research and
development facility in Philadelphia, certificates of deposit in
the amount of $156,000 were placed as security for potential
environmental expenses with Pennsylvania’s Department of
Environmental Protection, Bureau of Land Recycling and Waste
Management.
Net cash used in operating activities was $14.9 million,
$12.7 million, $17.8 million, $17.9 million and
$10.1 million for the nine months ended September 30,2008 and 2007 and for the years ended December 31, 2007,
2006 and 2005, respectively. The primary increase in the amount
of cash used in operating activities subsequent to 2005 was due
to the RES acquisition. Prior to August 2005, all cash
used to support the operating activities was recorded as an
investment in RES. Accordingly, cash used in operating
activities for 2005 only includes cash used by the RES facility
from August through December 2005. Cash used in operating
activities from August 2005 through September 2008 was
primarily used to support the continued operations of our
Carthage facility, for research and development activities at
our Philadelphia facility, and for selling, general, and
administrative expenses.
Net Cash Used in
Investing Activities
Net cash used in investing activities was $1.6 million,
$1.8 million, $2.3 million, $3.1 million and
$8.2 million for the nine months ended September 30,2008 and 2007 and for the years ended December 31, 2007,
2006 and 2005, respectively. In 2005, $6.2 million in cash
was used to fund RES. During the nine months ended
September 30, 2008 and 2007 and for the years 2007, 2006
and 2005, cash used to purchase property, plant and equipment
amounted to $1.6 million, $1.8 million,
$2.3 million, $3.1 million and $2.0 million,
respectively.
Net Cash Provided
by Financing Activities
Net cash provided by financing activities was $7.5, $28.3,
$28.3 million, $17.1 million and $25.0 million
for the nine months ended September 30, 2008 and 2007 and
for the years ended December 31, 2007, 2006 and 2005,
respectively. In 2005 and 2006, cash provided by financing
activities reflected the net proceeds from the sale of equity
securities. In 2007, our cash flows from financing activities
reflected the net proceeds from the sale of equity securities as
well as net proceeds from issuance of convertible debt which
were converted in 2007 and proceeds from the exercise of stock
options.
Off-Balance Sheet
Arrangements
We have no off-balance sheet arrangements.
Contractual
Obligations
The following summarizes our contractual obligations as of
December 31, 2007:
2008
2009
2010
2011
2012
Thereafter
Total
(In thousands)
Operating Lease Obligations
$
211
$
168
$
133
$
79
$
73
$
255
$
919
Purchase
Obligations(1)
3,607
3,607
1,241
—
—
—
8,455
Other Long-Term Debt
126
62
75
92
91
1,138
1,584
$
3,944
$
3,837
$
1,449
$
171
$
164
$
1,393
$
10,958
(1)
Purchase obligations reflect our
current feedstock contract with Butterball under which we expect
to take delivery. Our contract was renewed in February 2008 and
will expire in May 2010. To estimate the purchase obligations
under this contract, we used the average monthly purchase for
the nine months ended September 30, 2008 and annualized the
estimate for the period remaining contract period.
We and
AB-CWT, a
related party, are jointly and severally liable under a
settlement agreement to pay $10,000 per month to Paul T. Baskis,
one of the original inventors of the technology underlying TCP,
until the last to expire of certain patents licensed to us by
AB-CWT. We
are liable for this payment through October 2012.
AB-CWT has
acknowledged that it is the primary obligor under that
settlement, has made all payments under that settlement and has
stated its intention to continue to make the payments required
under that settlement. However, since we are the principal
source of revenue for
AB-CWT, we
have determined that we should record the payment obligations as
a liability. As of December 31, 2007, we have a liability
of approximately $437,000 recorded. As
AB-CWT makes
the required settlement payments, we record the reversal of the
prior charge under selling, general and administrative expenses.
We reversed approximately $34,000, $23,000, $28,000 and $112,000
for the years ended December 2005, 2006 and 2007, and the
nine months ended September 30, 2008, respectively.
In December 2008, we completed a secured debt and warrant
financing for aggregate net proceeds of $2.0 million
whereby we issued promissory notes in an aggregate principal
amount of $2.0 million that will mature on the earlier to
occur of March 31, 2009 or the consummation of this
offering and warrants to purchase an aggregate of
116,667 shares of our common stock at an exercise price of
$30.54 per share. The promissory notes are fully secured by all
of our assets and have an interest rate of 18% per annum. The
warrants are exercisable beginning January 2010 and expire in
December 2013. We determined the fair value of the warrants,
$653,333, using the Black-Scholes option-pricing model with the
following assumptions: a fair market value of common stock of
$11.00 per share, exercise price of $30.54 per share, risk free
interest rate of 1.47%, volatility of 88.13%, dividend yield of
$0 and life of five years. The promissory notes will be recorded
at their relative fair value of $1.5 million and the
warrants will be recorded as additional paid in capital at their
relative fair value of $492,462.
In December 2008, we issued a promissory note to Weil,
Gotshal & Manges LLP in the principal amount of
$1.0 million in lieu of payment of accrued legal fees and
expenses. The promissory note issued to Weil, Gotshal &
Manges LLP has an interest rate of 3% per annum and will mature
on the earlier occur of March 31, 2009 or the consummation
of this offering.
Quantitative and
Qualitative Disclosures about Market Risk
We are subject to market risk with respect to changes in prices
for natural gas used in our Carthage facility, fuel oil and
natural gas market prices and feedstock prices.
Natural Gas Price
Fluctuation
We are subject to market risk with respect to natural gas which
is consumed in the conversion of waste and has historically been
subject to volatile market conditions. Natural gas prices and
availability are affected by weather conditions, overall
economic conditions and foreign and domestic governmental
regulation and relations. The price fluctuation of natural gas
over the last three years from December 31, 2005 to
December 31, 2008, based on the New York Mercantile
Exchange daily futures data, has ranged from a low of $4.89 per
MMBtu in September 2006 to a high of $13.58 per MMBtu in
July 2008. Natural gas costs comprised about 8% of our
total cost of sales for the year ended December 31, 2007.
Further, we are exposed to market risk with respect to natural
gas as we currently price our renewable diesel primarily based
on the price of natural gas.
Crude Oil and
Refined Product Price Fluctuation
We are exposed to market risks with respect to our renewable
diesel sales related to the volatility of No. 2 Heating Oil
and natural gas prices, as we intend to price our renewable
diesel at parity with No. 2 Heating Oil on a Btu basis. Our
financial results can be affected significantly by fluctuations
in these prices, which depend on many factors, including demand
for boiler fuels, prevailing economic conditions, worldwide
production levels, worldwide inventory levels and governmental
relations, regulatory initiatives and weather conditions. The
price fluctuation of No. 2 Heating Oil over the last
three years from December 31, 2005 to
December 31, 2008, based on the New York Mercantile
Exchange daily futures data, has ranged from a low of $1.27 per
gallon in December 2008 to a high of $4.11 per gallon in
July 2008. The price fluctuation of natural gas over the last
three years from December 31, 2005 to
December 31, 2008, based on the New York Mercantile
Exchange daily futures data, has ranged from a low of $4.89 per
MMBtu in September 2006 to a high of $13.58 per MMBtu in
July 2008.
In order to manage the uncertainty relating to price volatility,
we have applied a policy of avoiding inventory build and to sell
our renewable diesel as manufactured to meet our commitments.
In the past, circumstances have occurred, such as shifts in
market demand that have resulted in variances between our actual
inventory level and our desired target inventory level. We
maintain some inventories of our renewable diesel, the values of
which are subject to wide fluctuations.
Feedstock
We are subject to market risk with respect to the price and
availability of feedstock. In general, feedstock prices in the
United States are influenced by the rate of food processing by
our suppliers, seasonality, weather conditions and impact on
transportation and facility operations, the supply and demand
for use in the animal feed industry, as well as the availability
and pricing of substitute feedstock. Additionally, the effect of
laws and regulations for the use of feedstock in the animal feed
industry will also impact its pricing. Higher feedstock costs
result in higher cost of goods sold and lower profit margins.
Recently Issued
Accounting Pronouncements
In May 2008, the FASB issued SFAS No. 162, “The
Hierarchy of Generally Accepted Accounting Principles,” or
“SFAS No. 162.” SFAS No. 162 is
intended to improve financial reporting by identifying a
consistent framework, or hierarchy, for selecting accounting
principles to be used in preparing financial statements that are
presented in conformity with generally accepted accounting
principles. SFAS No. 162 will become effective
60 days following the Securities and Exchange
Commission’s approval of the Public Company Accounting
Oversight Board amendments to AU Section 411, “The
Meaning of Present Fairly in Conformity With Generally Accepted
Accounting Principles.”The Company does not anticipate the
adoption of SFAS No. 162 will have a material impact
on its results of operations, cash flows or financial condition.
On April 25, 2008, the FASB issued FASB Staff Position
(FSP)
FAS 142-3,
“Determination of the Useful Life of Intangible
Assets.” This FSP amends the factors that should be
considered in developing renewal or extension assumptions used
to determine the useful life of a recognized intangible asset
under SFAS No. 142, “Goodwill and Other
Intangible Assets,” or SFAS 142. The intent of this
FSP is to improve the consistency between the useful life of a
recognized intangible asset under SFAS 142 and the period
of expected cash flows used to measure the fair value of the
asset under SFAS 141R and other generally accepted
accounting principles. This FSP is effective for financial
statements issued for fiscal years beginning after
December 15, 2008, and interim periods within those fiscal
years. Early adoption is prohibited. We are currently evaluating
the impact, if any, that this FSP will have on our results of
operations, financial position or cash flows.
Effective January 1, 2008, we adopted
SFAS No. 157, “Fair Value Measurements,” or
SFAS 157, for assets and liabilities measured at fair value
on a recurring basis. SFAS 157 establishes a common
definition for fair value to be applied to existing generally
accepted accounting principles that require the use of fair
value measurements, establishes a framework for measuring fair
value and expands disclosure about such fair value measurements.
The adoption of SFAS 157 did not have an impact on our
financial position or operating results, but did expand certain
disclosures. SFAS 157 defines fair value as the price that
would be received to sell an asset or paid to transfer a
liability in an orderly transaction between market participants
at the measurement date. Additionally, SFAS 157 requires
the use of valuation techniques that maximize the use of
observable inputs and minimize the use of unobservable inputs.
These inputs are prioritized below:
Level 1:
Observable inputs such as quoted market prices in active markets
for identical assets or liabilities.
Observable market-based inputs or unobservable inputs that are
corroborated by market data.
Level 3:
Unobservable inputs for which there is little or no market data,
which require the use of the reporting entity’s own
assumptions.
We did not have any Level 2 or Level 3 assets or
liabilities as of September 30, 2008. Cash and cash
equivalents and restricted cash of approximately
$3.7 million and $156,000, respectively, included money
market securities and short-term certificate of deposits that
are considered to be highly liquid and easily tradable as of
September 30, 2008. These securities are valued using
inputs observable in active markets for identical securities and
are therefore classified as Level 1 within our fair value
hierarchy.
In addition, SFAS No. 159, “The Fair Value Option
for Financial Assets and Financial Liabilities,” or
SFAS 159, became effective on January 1, 2008.
SFAS 159 expands opportunities to use fair value
measurements in financial reporting and permits entities to
choose to measure many financial instruments and certain other
items at fair value. We did not elect the fair value options for
any of our qualifying financial instruments.
In December 2007, the FASB issued SFAS No. 141
(Revised 2007), “Business Combinations,” or
SFAS 141R, a replacement of FASB Statement No. 141.
SFAS 141R is effective for fiscal years beginning on or
after December 15, 2008 and applies to all business
combinations. SFAS 141R provides that, upon initially
obtaining control, an acquirer shall recognize 100% of the fair
values of acquired assets, including goodwill, and assumed
liabilities, with only limited exceptions, even if the acquirer
has not acquired 100% of its target. As a consequence, the
current step acquisition model will be eliminated. Additionally,
SFAS 141R changes current practice, in part, as follows:
(1) contingent consideration arrangements will be recorded
at fair value at the acquisition date and included on that basis
in the purchase price consideration; (2) transaction costs
will be expensed as incurred, rather than capitalized as part of
the purchase price; (3) pre-acquisition contingencies, such
as legal issues, will generally have to be accounted for in
purchase accounting at fair value; and (4) in order to
accrue for a restructuring plan in purchase accounting, the
requirements in FASB Statement No. 146, “Accounting
for Costs Associated with Exit or Disposal Activities,”
would have to be met at the acquisition date. While there is no
expected impact to our consolidated financial statements on the
accounting for acquisitions completed prior to December 31,2008, the adoption of SFAS 141R on January 1, 2009
could materially change the accounting for business combinations
consummated subsequent to that date.
In December 2007, the FASB issued SFAS No. 160,
“Non-controlling Interests in Consolidated Financial
Statements — An Amendment of ARB No. 51,” or
SFAS 160. SFAS 160 establishes new accounting and
reporting standards for the non-controlling interest in a
subsidiary and for the deconsolidation of a subsidiary.
Specifically, this statement requires the recognition of a
non-controlling interest (minority interest) as equity in the
consolidated financial statements and separate from the
parent’s equity. The amount of net income attributable to
the non-controlling interest will be included in consolidated
net income on the face of the income statement. SFAS 160
clarifies that changes in a parent’s ownership interest in
a subsidiary that do not result in deconsolidation are equity
transactions if the parent retains its controlling financial
interest. In addition, this statement requires that a parent
recognize a gain or loss in net income when a subsidiary is
deconsolidated. Such gain or loss will be measured using the
fair value of the non-controlling equity investment on the
deconsolidation date. SFAS 160 also includes expanded
disclosure requirements regarding the interests of the parent
and its non-controlling interest. SFAS 160 is effective for
fiscal years, and interim periods within those fiscal years,
beginning on or after December 15, 2008. Earlier adoption
is prohibited. The impact, if any, from the adoption of SFAS to
us in 2009 will depend on the development of our business at
that time.
We sell renewable diesel fuel oil and organic fertilizers which
we currently produce from animal and food processing waste using
our proprietary Thermal Conversion Process, or TCP. TCP can
convert a broad range of organic wastes, or feedstock, including
animal and food processing waste, trap and low-value greases,
mixed plastics, rubber and foams, into our products. TCP
emulates the earth’s natural geological and geothermal
processes that transform organic material into fuels through the
application of water, heat and pressure in various stages. Our
renewable diesel has a significantly higher net energy balance,
which is defined as the ratio of the amount of energy contained
in a fuel to the energy required to produce that fuel, than
conventional diesel, ethanol or other biofuels. Our renewable
diesel does not compete for food crops, uses fewer natural
resources than conventional diesel, ethanol or other biofuels,
and does not contain alcohol. TCP uses conventional processing
equipment, which we believe requires a comparatively small
operating footprint and is relatively easy to permit compared to
other waste processing technologies.
Our first production facility, located in Carthage, Missouri,
has demonstrated the scalability of TCP in an approximately 250
ton per day production operation. Our Carthage facility has the
capacity to convert 78,000 tons of animal and food processing
waste into approximately 4 million to 9 million
gallons of renewable diesel per year, depending on the feedstock
mix used. We also produce fertilizers through TCP. We currently
sell the renewable diesel produced at our Carthage facility as a
fuel for the industrial boiler market, and we sell our
fertilizers to a number of farms in the Carthage area. During
the nine months ended September 30, 2008, we produced
approximately 1,095,000 gallons of renewable diesel and sold
approximately 684,000 gallons of renewable diesel. We commenced
the sale of one of our fertilizers in the second quarter of
2008. We received an average price of $1.19 per gallon of
renewable diesel sold in the nine months ended
September 30, 2008.
The markets for our products are large. The industrial fuel oil
market in the United States consumes approximately
62 billion gallons of diesel per year in addition to large
quantities of other fuels. We target the industrial steam boiler
and off-road engine portions of this market which consumes
approximately 23 billion gallons of diesel per year. The
North American nitrogen and phosphate fertilizer market is
approximately 26 million tons per year. Because quantities
of renewable diesel and fertilizers produced from each TCP
facility will be relatively small compared to the combined
energy and fertilizer demand of local industrial consumers and
farmers, we anticipate that all of the products from each of our
facilities will be sold within a
100-mile
radius of each TCP facility. In addition, due to evolving
federal and state renewable energy mandates, we believe there is
a significant market opportunity to sell our renewable diesel
into the 43 billion gallon equivalent electrical power
generation market.
We believe that we will be able to achieve profitability by
offering competitively priced renewable diesel and fertilizers
to our customers. As more customers purchase and validate our
renewable diesel, we intend to price our product at parity, on a
per-British thermal unit, or Btu, basis, with No. 2 Heating
Oil. The price of No. 2 Heating Oil on the New York
Mercantile Exchange was $1.44 per gallon as of December 31,2008, and the average price of No. 2 Heating Oil over the
last three years from December 31, 2005 to
December 31, 2008 was $2.25 per gallon. Our renewable
diesel contains approximately 9% fewer Btus than No. 2
Heating Oil on a volumetric basis, and, at parity, we believe
our renewable diesel will sell for a price that will be 9% lower
than the market price for No. 2 Heating Oil. We estimate
that our cash production cost of renewable diesel will
ultimately be in the range of $0.85 to $1.60 per gallon for our
larger production facilities. We believe that our cost of
feedstock conversion, which we define as our cash production
cost less the cost of feedstock, will be between $0.30 and $0.80
per gallon of renewable diesel for our larger production
facilities. We believe
our future feedstock costs will vary significantly based on the
type of feedstock utilized and then prevailing market conditions
for feedstock. Our cash production cost does not give effect to
the $1.00 per gallon renewable diesel mixture tax credit that we
receive from the U.S. government for each gallon of
renewable diesel produced at our facilities that we sell in the
United States. The renewable diesel mixture tax credit is
scheduled to expire at the end of 2009. Using the current
feedstock mix at our Carthage facility, for every gallon of
renewable diesel we produce, we produce approximately one gallon
of liquid nitrogen concentrate fertilizer and three pounds of
solid mineral phosphate fertilizer.
We intend to establish additional facilities close to sources of
feedstock, initially focusing on animal and food processing
waste and trap and low-value greases in North America and
Europe. There are approximately 23.5 million tons of animal
and food processing waste generated annually in North America
and 18.7 million tons generated annually in Europe. There
are approximately 4.7 million tons of trap grease generated
annually in North America. Based on our analysis of optimal
facility sizes, we initially intend to establish TCP animal and
food processing waste facilities that process approximately 500
to 2,000 tons of waste per day and TCP grease facilities that
process approximately 150 to 600 tons of waste per day.
We have entered into discussions with several animal and food
processors in North America and Europe and with municipal
treatment facilities and trap grease aggregators in the
Northeast United States regarding potential construction of new
TCP facilities and retrofitting existing facilities with TCP.
Our growth strategy includes:
•
forming joint ventures with waste producers to own and operate
new TCP facilities;
•
constructing and operating new wholly-owned TCP facilities;
•
retrofitting existing animal and food processing facilities with
our proprietary TCP technology; and
•
licensing TCP to third-party operators.
We began development of TCP in 1997. In 1999, we commenced
operations of our seven ton per day pilot facility for animal
and food processing waste located at our research and
development facility in Philadelphia, Pennsylvania. We commenced
development of our Carthage facility in 2002 and, from 2005 to
January 2007, we developed and refined the equipment, procedures
and processes at our Carthage facility to bring TCP from
demonstration status to production. We commenced commercial
sales of our renewable diesel in January 2007, and we commenced
sales of one of our fertilizers in the second quarter of 2008.
Our Carthage facility is currently our only production facility.
Trends Impacting
our Business
We believe that a number of trends in our markets are converging
to increase demand for TCP and our renewable diesel and
fertilizers.
Global Energy
Supply and Demand
We believe we have entered a period of volatile crude oil and
natural gas prices which we believe is driven in part by changes
in demand for industrial fuels. Geopolitical instability within
the Middle East and other oil exporting regions, along with
risks inherent in long-distance transportation associated with
exporting from these regions, continue to result in risk-related
price premiums. In addition, increased
long-term
global demand for industrial fuels from rapidly developing
nations, such as China and India, have further affected energy
prices. As a result, there is increased focus on the development
of alternative domestic energy supplies, particularly through
the development of renewable sources.
Concerns Around
the Diversion of Food Supplies to Fuels
The rising use of land to grow crops for fuel rather than for
food has increased competition for acreage. A report released in
2008, prepared by the Food and Agricultural Organization of the
United Nations and the Organization for Economic Cooperation and
Development, stated that “the energy security,
environmental and economic benefits of biofuels production based
on agricultural commodity feedstocks are at best modest, and
sometimes even negative.” By diverting crops, which have
traditionally been a source for the world’s food supply, to
be used as sources of energy, ethanol and biofuels are driving
up prices and creating food shortages around the world.
Environmental and
Sustainability Concerns
As the world seeks to address increasing levels of greenhouse
gases, particularly carbon dioxide emissions, there is a growing
public policy emphasis on developing sustainable
“green” energy sources. For example, renewable
portfolio standards that obligate retail electricity suppliers
to include renewable resources in their electricity generation
portfolio have been established in 24 states. In addition
to these programs, electricity suppliers producing electricity
through renewable sources are eligible to receive a federal
production tax credit of $0.019/kWh. Renewable fuels standards
have also been implemented on a federal level which mandate
increases in the percentage of biofuels required to be blended
into fossil fuels sold in the United States. As a result, we
believe there is a significant market opportunity for producers
of renewable diesel.
Increasing Demand
for Fertilizers
In recent years, there has been a sharp increase in global
demand for fertilizer, driven primarily by population growth and
changes in dietary habits. As populations and incomes continue
to grow, more food is required from a decreasing per capita
supply of arable land. This requires higher crop yields and,
therefore, more plant nutrients or fertilizers. This trend,
combined with a fixed supply of certain inputs for commercial
fertilizers, including phosphate rock, has led to a steady
global increase in the price of fertilizers. As a result, we
believe there is a significant market opportunity for organic
fertilizers.
Food Safety and
Health Concerns
The animal and food processing industry is under significant
market and regulatory pressure as consumers and regulators
address the growing concerns related to pathogenic and toxic
contamination of the food chain. In particular, the spread of
bovine spongiform encephalopathy, BSE or mad cow disease, is
believed to be caused by the consumption of meat and bone meal
by cattle, which is made from animal carcasses and incorporated
in cattle feed. To strengthen existing safeguards against BSE,
on April 25, 2008, the U.S. Food and Drug Administration
enacted a more stringent law redefining the categories of
cattle-derived products that can be used for animal and pet
feed. In addition, U.S. beef exports have been negatively
affected by U.S. policy regarding animal rendering.
Accordingly, we believe animal and food processors will seek
cost-effective methods for disposal of this waste to address
market and regulatory concerns, thus increasing the supply of
animal and food processing waste. Further, as producers of
organic waste look for other waste processing solutions, we
believe the cost of our feedstock will decrease.
Disposal of Trap
and Low-Value Greases
The discharge of fats, oils and greases, or FOG, from food
service establishments and other industrial processing
facilities creates significant environmental, public health and
operational problems in wastewater treatment facilities
throughout the country. When FOG is dumped into sewers,
wastewater treatment facilities are negatively impacted due to
the hardening of greases in sewer lines and treatment systems.
FOG collected from traps is often mixed with absorbents and then
disposed
of in landfills or incinerated, creating other environmental
issues. This issue is compounded by both the distance to legal
disposal sites and the rising cost of fuel. We believe that
municipalities are seeking technologies that can mitigate these
concerns.
Our
Strategy
Our goal is to further expand our production and sale of
renewable diesel and fertilizers from waste. The key elements of
our strategy to achieve this goal include:
Develop New Facilities. We believe that our
success will be driven by producing significant quantities of
renewable diesel. Based on our analysis of optimal plant sizes,
initially we intend to establish TCP facilities that can convert
from 500 to 2,000 tons of animal and food processing waste per
day and produce approximately 8 million to 86 million
gallons of renewable diesel per year, depending on the size of
the facility and the composition of the feedstock. We also
intend to establish grease facilities that can convert from 150
to 600 tons of feedstock per day and produce 3 million
to 46 million gallons of renewable diesel per year,
depending on the size of the facility and the composition of the
feedstock. Due to more stringent regulations in Canada and
Europe regarding animal and food processing waste disposal, we
believe there is greater urgency in these regions to find
effective alternatives to conventional technologies, and the
cost of feedstock will be lower in these regions. Accordingly,
we focus our efforts in these areas. We expect to work closely
with various third-party engineering and construction
specialists to develop and execute plant-specific engineering
procurement and construction plans. Further, we expect to
internally develop a full engineering bid package that can be
used to achieve best costs for procurement and construction
through key processes for TCP-specific construction, including
process flow diagrams, heat and material balances, piping and
instrumentation diagrams and process specific equipment, which
will be used in developing facility construction plans. We
expect to locate future facilities near sources of feedstock and
suitable markets for our renewable diesel and fertilizers. In
addition, we may sub-license TCP to third parties to enable them
to build and operate their own facilities.
Secure Additional Sources of Animal and Food Processing
Waste. Securing steady supplies of feedstock is
critical to our growth and future success. We have targeted
animal and food processing waste as our primary feedstock and
entered into a supply agreement to convert wastes from a
Butterball turkey processing facility in Carthage. We believe
the animal and food processing industries are good sources of
feedstock because they generate significant quantities of
organic wastes that can be converted to renewable diesel using
TCP and are under increasing market and regulatory pressures to
change how animal wastes are handled and utilized. To secure
large and steady supplies of feedstock, we are seeking to enter
into supply agreements with other animal and food processors in
North America and Europe. We may replicate the strategy we
utilized in developing our Carthage facility and enter into
arrangements with other animal and food processors where we
co-locate one of our TPC facilities near their facility to
provide a cost-effective waste management alternative.
Expand our Sales and Marketing Efforts. As
production of our renewable diesel and fertilizers increases, we
plan to expand our sales and marketing infrastructure as well as
begin to collaborate with third parties that have local sales
and marketing expertise near our facilities. The market value of
our renewable diesel will vary, to some degree, by location
based on local market conditions and regulatory regimes. We
intend to make decisions regarding sales and marketing of our
products based on the specific products and locations of our
facilities.
Secure Financing for Future Facilities on Favorable
Terms. Construction of new TCP facilities
requires significant capital investment. We plan to finance our
construction costs through a variety of sources, including debt
and equity financings. Additionally, we plan to work with
governmental entities to secure grants and co-sponsorships of
some of our projects. We believe that the sustainable and
renewable aspects of our business model will be appealing to
these entities and
encourage them to assist us in the financing of new facilities.
We also believe that certain aspects of our business model,
including its sustainable and renewable aspect, will enable us
to secure financing on favorable terms, particularly in relation
to fuel refinement and power generation projects. In response to
the growing public concern regarding energy, federal and state
incentive programs have been enacted. For example, tax
incentives, low-interest loans, credit enhancements and federal
loan guarantees for projects that employ advanced energy
technologies that reduce emissions of air pollutants or
greenhouse gases have been enacted to aid the development and
commercialization of renewable energy technologies. We believe
we will benefit from these federal and state programs, and, as a
result, we expect that our construction costs will be
significantly lower than that of other fuel and power generators.
Improve Efficiency and Reduce Costs. We are
continually seeking to optimize TCP to improve the efficiency of
our facilities and to reduce the
per-Btu
costs of producing our renewable diesel. We have developed a
substantial amount of experience during the development,
construction, operation and
scale-up of
our Carthage facility, and we are continually seeking to improve
our technology and facility operations. We are seeking to
improve our average mechanical availability of our new and
existing facilities. In the first nine months of 2008, our
Carthage facility achieved 80% average mechanical availability.
We are targeting operating our facilities at 86% to 90% average
mechanical availability in the future. We believe that as we
start to operate facilities that are designed to handle
approximately 500 to 2,000 tons of animal and food processing
waste per day and 150 to 600 tons of grease per day, we should
benefit from substantial economies of scale and improve our
operating margins because the majority of our operating costs
are fixed and do not vary with production levels.
Develop Potential Future Markets and Applications of
TCP. We believe that there are significant
opportunities to use TCP in different markets and convert other
suitable waste streams into renewable diesel and fertilizers. As
we continue to expand our operations, we expect to make efforts
to penetrate these other areas.
•
Potential Markets for TCP. We have conducted
extensive research and testing to evaluate the applicability our
renewable diesel to the electrical power generation market. Our
work with National Grid and Brookhaven National Laboratories
indicates that a blend of our renewable diesel with petroleum
fuel oil would combust effectively in National Grid’s
existing power generation facility. We intend to work with
combustion turbine manufacturers to determine the necessary fuel
treatment systems at our facilities or the modifications to the
fuel delivery systems of combustion turbines in order to cost
effectively generate electricity from our renewable diesel if
sufficient quantities of fuel can be produced.
Our renewable diesel may also be effectively used in the
industrial fuel blender market. Industrial equipment intended to
burn petroleum distillate and residual fuel oils are designed to
efficiently and effectively use fuels with specifications
falling within a fairly broad range. Industrial fuel blenders
acquire a variety of on-specification fuels, off-specification
fuels, intermediate or unfinished fuels, and other components
for blending to meet either industry standards or individual
customer requirements. For example, stringent federal and state
limitations on sulfur contaminants in fuels have lead to
significant opportunities for blenders to acquire feedstocks of
various sulfur contents for blending to meet these limitations.
Renewable diesel has relatively low levels of sulfur and
relatively high energy content, so it is particularly valuable
as a blendstock for offsetting other higher sulfur components in
the blend fuel without diminishing the blended fuel’s
energy value to the end-user.
•
Potential Applications of TCP. TCP can covert
plastics and other non-metallic wastes into renewable diesel. An
estimated 29.3 million tons of mixed plastic, rubber and
foam waste were generated in the United States in 2006. Although
many of these materials can be
recycled, successful commercial recycling of mixed plastics,
rubber and foam has proven to be difficult due to their widely
varying composition and chemical and physical properties.
Governmental entities are mandating stricter environmental
policies, and industrial processors face growing pressures to
develop and implement productive uses for the waste from their
processing facilities without discharging contaminants and
pollutants.
Mixed plastic wastes, which have a higher density of carbon and
lower moisture content, have a higher yield of renewable diesel
than animal and food processing waste. Our testing and research
have shown these materials to be well-suited to our technology.
We are working with the Vehicle Recycling Partnership, or VRP, a
consortium composed of the big three U.S. automobile
manufacturers, to process the non-metallic materials consisting
of mixed plastics, rubber and foam, commonly referred to as
shredder residue, created when discarded automobiles as well as
household and industrial appliances are shredded as part of the
recycling process. We are in the second phase of pilot testing
related to the VRP at our Philadelphia research and development
facility to evaluate the commercial viability of using mixed
plastics that are included in municipal solid waste, or MSW, as
feedstock. Many of these other waste streams can yield more
renewable diesel per ton as well as fuels with higher economic
values than our renewable diesel from animal and food processing
waste. We believe the development of TCP to convert these waste
streams will enable us to lessen our dependency on animal and
food processing waste and enhance the profitability of future
facilities.
Our
Products
We produce renewable diesel fuel oil, a liquid nitrogen
concentrate fertilizer and a solid mineral phosphate fertilizer.
The following table demonstrates the varying numbers of gallons
of renewable diesel, gallons of liquid nitrogen concentrate
fertilizer and pounds of solid mineral phosphate fertilizer
yielded by one ton of different types of feedstock. The physical
properties and qualities of renewable diesel and fertilizers
resulting from TCP, as well as the yield of renewable diesel and
fertilizers, will vary according to the type of organic waste
used due to differing levels of moisture, density and
composition of feedstock. Accordingly, the prices for feedstock
can vary significantly.
Solid
Renewable
Liquid Nitrogen
Mineral
Diesel
Concentrate
Phosphate
One Ton of Feedstock
(in gallons)
(in gallons)
(in pounds)
Poultry Offal
50
43
153
Hog and Steer Offal
98
41
160
Trap Grease (20% fat)
55
—
—
Restaurant Grease
242
—
—
Renewable Diesel
Fuel Oil
Renewable diesel generated via TCP is similar to other liquid
fuels with respect to its physical properties and combustion
performance as demonstrated by the table below.
We believe producing renewable diesel from waste has many
benefits, including:
•
replacing petroleum products for energy;
•
improving environmental waste management;
•
avoiding competition between food and food-to-fuel alternatives;
and
•
reducing carbon dioxide emissions.
Our renewable diesel is marketed and sold directly to commercial
and industrial end-users. We currently sell our renewable diesel
for use in commercial and industrial boilers. Our renewable
diesel contains approximately 9% fewer Btus than No. 2
Heating Oil on a volumetric basis, and, at parity, we believe
our renewable diesel will sell for a price that will be 9% lower
than the market price for No. 2 heating oil. Steam boilers
firing fuel oil or natural gas are the most commonly and widely
used equipment to produce process steam and other heat energy
for a broad range of large and small-scale commercial and
industrial manufacturing facilities. Boilers already configured
to burn fuel oils can burn our renewable diesel with simple
replacement of select components of the fuel delivery system
(e.g., pumps, meters and nozzles). Natural gas fired boilers
require more extensive modifications and additions, such as the
installation of fuel storage tanks and liquid fuel delivery
systems. The one-time cost for converting an industrial boiler
burning fuel oil or a similar boiler burning natural gas to burn
renewable diesel is approximately $50,000 and $100,000,
respectively. We estimate that complete conversion can be
accomplished in less than 30 days for fuel oil boilers and
60 days for natural gas boilers, with the boiler down-time
limited to less than three days. We offer a variety of
arrangements to attract new customers, including funding boiler
modifications or providing a price adjustment for our renewable
diesel as a means of reimbursing the cost of modifications
incurred by a customer. The market value of our renewable diesel
will vary by location based on local market conditions and
regulatory regimes. As producers of organic waste look for other
waste processing solutions, we believe the costs of our
feedstock will decrease, and we may ultimately be able to
generate revenues from tipping fees, which are charges levied
upon a given quantity of waste received at a waste processing
facility.
Our renewable diesel is transported by truck, and renewable
diesel that we produce but that is not sold is stored on-site
and off-site in above-ground tanks.
Organic
Fertilizers
In addition to our renewable diesel, TCP yields two types of
organic fertilizer: a liquid nitrogen concentrate fertilizer, or
LNC, and a solid mineral phosphate/calcium fertilizer, or SMP.
Our fertilizers are naturally derived, and their content and
values are based upon their nutrient, or N-P-K, value, a
measurement of the nitrogen, phosphates and potassium contained
in the fertilizer on a weight percentage basis. Our LNC is
marketed with a guaranteed plant nutrient content of 6-0-0 and
is registered and sold in Missouri. Our SMP is marketed with a
guaranteed plant nutrient content of
0-14-0 and
is currently registered in Kansas, Missouri and Oklahoma as a
commercial fertilizer.
Both fertilizers can be land-applied using commonly available
spreading equipment and transported with conventional
over-the-road truck equipment. For our new facilities, it is
anticipated that all of the fertilizer produced can be sold to
local farms within a
100-mile
radius. Our fertilizers are transported by truck, and fertilizer
that we produce but that is not sold is stored
on-site and
off-site in
above-ground
tanks. We will seek business arrangements with existing
fertilizer distributors in order to capitalize on their
infrastructure, equipment and customer lists. In the future, we
may also pursue partnerships with other fertilizer producers to
blend our fertilizers with their products.
•
Liquid Nitrogen Concentrate Fertilizer. LNC is
a concentrated amino acid-based fertilizer which contains a
significant percentage of nitrogen which is an important
nutrient for growing various types of commercial agricultural
crops. Our LNC has been applied commercially at agronomic rates
to corn, wheat, Bermuda hay and pasturelands in southwest
Missouri. LNC performs similarly to other registered commercial
inputs for
nitrogen, such as urea or anhydrous ammonia. We currently sell
our LNC at a discount to the current local nitrogen fertilizer
market. As our LNC gains further commercial validation, we
intend to gradually increase the price per gallon until it
reaches parity with current retail fertilizer prices, as well as
pursue other higher margin sales opportunities.
•
Solid Mineral Phosphate/Calcium
Fertilizer. SMP is a concentrated
phosphate/calcium fertilizer. Phosphate is a mineral found in
commercial quantities in fossilized marine life deposits and
provides an essential nutrient for plant cell wall development.
SMP has been applied at commercial scale at farms. We recently
initiated a program for commercial sale and application of our
SMP. We expect to sell our SMP as a wet product containing up to
50% moisture. We anticipate selling at a discount to the current
local phosphate fertilizer market. Extensive product drying
tests have been completed on our SMP to demonstrate that it can
also be sold in a dry form, which would reduce freight costs and
the application rate per ton. While our current facility lacks
drying capacity, we anticipate installing drying capacity in
future facilities. As our SMP gains commercial validation, we
intend to gradually increase the price per ton until it reaches
parity with current retail phosphate prices, as well as pursue
other higher margin sales opportunities.
Our
Technology
TCP is a non-combustion process for the conversion of organic
waste into renewable diesel and fertilizers. TCP emulates the
earth’s natural geological and geothermal processes that
transform organic material into fuels through the application of
water, heat and pressure in various stages. TCP is not dependent
on enzymes or bacteria. TCP is a continuous flow-through process
and it takes approximately two hours for the key process steps
to yield our products. Further, certain aspects of TCP and our
products have been reviewed and tested by a number of leading
independent organizations, including a life-cycle analysis by
The Massachusetts Institute of Technology and a fuel analysis by
the Brookhaven National Laboratory. These studies confirmed the
quality and the environmental footprint of our process and
renewable diesel for a number of industrial applications.
Process
Overview
TCP utilizes four distinct steps to convert waste:
1. Preparation. Trucks deliver
waste into a tank at our facility. The waste is prepared into a
slurry by utilizing standard industrial conveyors, screening and
grinding equipment. Once the slurry is
prepared, it can either be transferred through a piping system
into on-site
storage tanks for later processing or immediately introduced
into the process. This ability to prepare and store incoming
waste prior to processing provides flexibility to accommodate
high degrees of variability in the delivery times and
composition of wastes.
2. Separation of Organic and Inorganic
Waste. The slurry is heated to a temperature of
approximately 300°F and pressurized to 80 pounds per
square inch, or PSIG, in the first thermal reactor. This step
breaks down organic matter and separates organic and inorganic
materials (minerals) contained in the slurry. The large mineral
particles are removed at this stage and transferred to finished
product separation where they are re-combined with the smaller
particles.
3. Conversion of Organic Waste to Renewable
Diesel. The organic liquid materials and small
mineral particles are then piped to another thermal reactor and
subjected to higher temperature and pressure (e.g.,
480°F and 600 PSIG). In this step, large complex
organic molecules are broken down into smaller simpler molecules
and hydrolyzed, creating a mixture of renewable diesel,
nitrogen-rich water and small mineral particles. The combination
of heat, pressure and time employed in this step assures that
any pathogens contained in the waste are destroyed. Much of the
heat energy applied in this step is recovered as waste heat from
the subsequent conversion step, which is a key factor in the
high energy efficiency of the process.
4. Finished Product Separation. The
mixture of renewable diesel, nitrogen-rich water and small
mineral particles from the conversion step are separated using
conventional separation equipment. First, the small mineral
particles that were not removed during the earlier separation
step are removed from the liquids by decanting. This phosphate
and calcium rich solid mineral is recombined with the larger
particles from the earlier separation step and stored for sale
as our fertilizer. Next, the renewable diesel and nitrogen-rich
water are separated using a centrifuge. The renewable diesel is
piped into storage tanks and held for sale. The nitrogen rich
water is further concentrated into our liquid fertilizer, which
is piped into storage tanks.
As demonstrated by the figure below, TCP is approximately 85%
energy efficient.
Energy Balance
for
1,000 Ton per Day Animal Plant
Overall Energy
Efficiency1
= 85%
(1)
Overall energy efficiency is
defined as the energy content of the end products divided by the
sum of the energy content of the waste input and energy input.
Our exclusively licensed patents and patent applications are
directed to key elements of TCP, which, we believe,
differentiate our position in the industry. For example, our
patents and pending patent applications describe the handling of
mixed feedstocks in multiple process reaction steps, where each
of those steps is at different conditions, such as pressure and
temperature, with phase separation in between the process steps.
Effective management of these complex interactions is a critical
element in the efficient conversion of waste into renewable
diesel. Additionally, our patents and pending patent
applications describe the use of water in the conversion
process. A water-intensive conversion environment facilitates
the breakdown of chemical bonds while simultaneously suppressing
unwanted, inefficient chemical reactions. We believe that water
usage is a key component in optimizing the process for
converting waste into fuel.
Advantages of Our
Technology
We believe TCP has the following competitive advantages:
Proprietary. We exclusively license seven
issued U.S. patents, five pending U.S. patent
applications and 51 issued foreign patents and pending
foreign applications, a subset of which are directed to our
proprietary TCP technology as currently implemented, from
AB-CWT, a related company. The patents cover the Process for
Conversion of Organic, Waste or Low-Value Material into Useful
Products, the Thermal Depolymerization Process and Chemical
Reforming Apparatus, the Bench Model Reforming System (both as
to the method and the product) and the Laboratory Prototype
Reforming Flow-Through System (both as to the method and the
product).
We also rely upon trade secrets related to facility operating
conditions, process chemistry, facility design and research and
development experience that we have gained in the ten years we
have worked with TCP.
Easily Deployed. We believe new TCP facilities
can be easily deployed due to several attributes of TCP.
•
Conventional Equipment. TCP utilizes
conventional chemical processing equipment, established
operating techniques and proprietary processes combined in a
proprietary configuration. The equipment utilized is easily
obtained and constructed and does not require significant
up-front costs to develop. TCP does not utilize exotic, rare or
expensive chemicals or catalysts.
•
Scalable and Adaptable. TCP can be configured
to convert various waste streams and volumes by modifying the
sizes and capacities of the equipment (e.g., pipes, pumps, tanks
and heat exchangers). Therefore, we can configure our facilities
to match the market opportunity and available feedstock and
optimize our capital outlays and operating expenses.
•
Facility Size. Our larger facility design
requires approximately five acres for a 1,000 ton of animal and
food processing waste per day plant, which is a considerably
smaller footprint than required for comparable alternative waste
processing technologies, such as incineration. Trap and
low-value grease facilities require less than two acres due to
the minimal solids loading and handling of materials in the
process system.
•
Non-Combustion Process. TCP relies on moderate
temperature and pressure to convert feedstock into renewable
diesel, unlike combustion processes that capture the energy
value contained in the waste through incineration or
gasification. Therefore, waste processing utilizing our
proprietary TCP technology results in significantly fewer
emissions of air pollutants, which reduces the costs of both air
emission control equipment and regulatory compliance as compared
to incineration or other waste processing
technologies. Further, our renewable diesel may be stored and
transported while the energy created by incineration and
gasification must be used as produced, which requires a suitable
energy host in near proximity to the source.
•
Relative Permitting Ease. The process for
obtaining regulatory and municipal permits is traditionally a
significant hurdle in the establishment of new energy-related
facilities. In particular, air emission permits often limit the
size of the facility and may involve lengthy public hearings and
other administrative processes. However, we believe the inherent
characteristics of TCP, such as the use of conventional chemical
processing equipment, relatively small footprint and minimal air
emissions and waste streams, should reduce the length of time
required for the permitting process. For example, the
Environmental Protection Agency and regulatory agencies in
Missouri and Pennsylvania have characterized TCP as a
manufacturing process rather than an incineration process. This
classification may eliminate the need to comply with solid waste
restrictions and meet certain regulatory requirements associated
with incineration processes. An additional benefit that allows
for an accelerated permitting process is that the only
significant effluent produced by TCP using animal and food
processing waste is a water stream suitable for discharge into
municipal water treatment facilities.
Ability to Convert Wide Variety of
Feedstock. We believe that TCP’s ability to
convert a wide variety of feedstock into renewable diesel
provides us with a competitive advantage in acquiring the
feedstock for our process. For example, we sometimes compete
with traditional animal and food processors for feedstock.
Renderers convert animal remains and by-products into a protein
feed which is then fed back to other animals. Renderers have
inherent limitations on what can be processed into their
end-products and maintain product value. TCP can process a wide
variety of waste streams simultaneously. As a result, we can
adjust our sourcing efforts for feedstock as market prices for
these feedstock change. We believe this flexibility is a
critical advantage as it affords us with an increased ability to
manage our costs.
Energy Efficient Process. TCP achieves high
product yield and recovery of the energy contained in the
feedstock. Energy requirements are minimal due to the moderate
processing temperatures and pressures used, the short amount of
time required for the process and the recovery and reuse of
waste heat. Our renewable diesel’s net energy balance is
over 7.0. This is significantly higher than that of soy-based
biodiesel at about 3.67 or corn-based ethanol at about 1.25.
Environmentally Friendly Product. We believe
that TCP and our renewable diesel represent a more
environmentally friendly fuel option than a variety of other
fuel alternatives. While ethanol and other biofuel production
processes typically require large amounts of clean process
water, catalysts, chemicals and arable land, which place demands
on natural resources, diesel production using TCP requires
significantly fewer natural resources. In contrast, the majority
of the feedstock used in TCP is considered waste and is
traditionally considered to have little or no economic value.
Moving away from using food crops for energy by developing and
deploying energy solutions that produce renewable diesel and
fertilizers from waste streams provide us with marketable
advantages over processes that use food crops for energy. In
addition, our products are renewable and are considered
“carbon-neutral” as they are created from animal and
food processing waste and do not result in the release of
additional fossil carbon into the environment. Further, wastes
that we use are not disposed of in landfills where pathogens and
harmful chemicals can leach into the ground water. The
temperature and pressure at which TCP operates effectively break
down and destroy pathogens in the waste. The New York State
Department of Health approved the application of TCP for the
treatment of regulated medical waste, and its operating
conditions have been shown to eliminate pathogens such as BSE.
As a result, the renewable diesel and fertilizers that are
generated by TCP can be used safely in a variety of industrial
and agricultural applications.
Low Cost of Customer Conversion. Based on our
experience with our customers, conversion of existing heating
oil or natural gas infrastructure to handle our renewable diesel
can be done with relatively simple modifications. Boilers
already configured to burn fuel oils can burn renewable diesel
with simple replacement of select components of the fuel
delivery system (e.g., pumps, meters and nozzles). Natural gas
fired boilers require more extensive modifications and
additions, such as the installation of fuel storage tanks and
liquid fuel delivery systems. The one-time cost for converting
an industrial boiler burning fuel oil or a similar boiler
burning natural gas to burn renewable diesel is approximately
$50,000 and $100,000, respectively. We estimate that complete
conversion can be accomplished in less than 30 days for
fuel oil boilers and 60 days for natural gas boilers, with
the boiler down-time limited to less than three days.
The Carthage
Facility and our Initial Customers
Our first production facility, located in Carthage, Missouri,
was commissioned in February 2005. The Carthage facility was
constructed and initially owned and operated by RES, a joint
venture between us and ConAgra. The facility is adjacent to a
Butterball turkey processing plant. ConAgra subsequently
exchanged its 50% interest in RES for shares of our common stock
and warrants and sold its Butterball turkey business to Carolina
Turkey, a joint venture of Smithfield Foods Inc. and Maxwell
Farms, Inc. The feedstock agreement with Butterball, which
expires in May 2010, requires Butterball to deliver 100% of the
feedstock produced by its facility in Carthage, Missouri, less
40 tons per week. The nameplate capacity of the facility is 250
tons per day, or 78,000 tons per year. The Carthage facility
converts approximately 44,000 tons of animal and food processing
waste from the Butterball facility each year and converts other
supplemental feedstock, including mortalities from egg laying
operations, secondary food processing wastes, trap and low-value
greases and other animal and food processing waste, that we
acquire opportunistically.
The development, construction and operation of the Carthage
facility:
•
demonstrated our ability to
scale-up TCP;
•
helped us win and serve our first customers for our renewable
diesel and fertilizers;
•
served as a development platform for further refinement of TCP;
•
provided an opportunity to evaluate and improve process design,
equipment installation and configuration, construction
materials, process controls and other key features of a
continuous process facility utilizing TCP;
•
enabled us to hire and train personnel and develop operational
expertise;
•
provided an opportunity to evaluate the supplemental
agricultural and food processing feedstock available in the
Carthage region; and
•
supported our marketing efforts by demonstrating the efficacy
and efficiency of TCP to convert animal and food processing
waste in a production facility.
We have undergone various validation processes, including clean
results from multiple internal boiler inspections by third-party
inspectors conducted after considerable boiler run-time.
Additionally, AP 42 EPA testing was performed to the
satisfaction of the state permitting agency. As a result of
these activities, we have secured customers for our renewable
diesel. Schreiber has committed to two long-term contracts at
two sites in Missouri for two large industrial boilers and
accounted for approximately 72.9% and 78.1% of our revenues in
2007 and the nine months ended September 30, 2008,
respectively. Schreiber’s boilers are expected to consume
approximately 1.4 million gallons annually of renewable
diesel. In addition, Dyno Nobel has entered into a two-year
agreement with us to purchase approximately 2.0 million gallons
of renewable diesel and accounted for approximately 14.3% of our
revenues in the nine months ended September 30, 2008.
Fairview Greenhouse, Inc. accounted for approximately 23.6% of
our
revenues in 2007. In the second quarter of 2008, we began
selling our liquid nitrogen concentrate fertilizer to a number
of farms in the Carthage area. Our other fertilizer is currently
registered in Kansas, Missouri and Oklahoma as a commercial
fertilizer.
During our initial operations at our Carthage facility, we dealt
with a number of
start-up
issues relating to original process and equipment design and
inadequate metallurgical selection. In addition, we close our
Carthage facility on an annual basis to conduct routine
maintenance and equipment upgrades. These closures typically
last two to four weeks and can affect our results of operations
for the relevant period. Further, we incurred costs in
connection with diversion and disposal of unprocessed feedstock
and waste water. As a result of the process modifications,
equipment replacements, operating experience and other changes
since commissioning, facility reliability and product quality
control have steadily improved. Our new facilities will be
redesigned based on the operating experience and knowledge we
developed at our Carthage facility. In the first nine months of
2008, our Carthage facility achieved 80% average mechanical
availability, which is the percentage of planned operating hours
that the facility actually operated. We believe significant
improvements in this metric can be realized in the future as a
result of improvements to process piping metallurgy.
Competition
We believe we compete primarily in two areas. The first involves
securing access to an ongoing supply of feedstock for our TCP
facilities. In this regard, we compete with large integrated
animal and food processors and independent renderers, such as
Baker Commodities, Darling International and Griffin Industries,
each of which process inedible wastes from meat and poultry
processors into animal feed, consumer food and fats for
industrial applications. Some of these companies also process
fats and greases from restaurants for recycling.
We believe that the value of our end products, when contrasted
against those of traditional renderers, provide us with an
inherent advantage when competing for the feedstock used in our
process. Renderers’ end products are relatively low-margin
commodity products with limited applications. In contrast, we
believe that the renewable diesel and fertilizers created via
TCP can be sold to a broader array of customers at a higher
margin.
We also compete to secure customers for our end products. In
selling our renewable diesel, we compete against purveyors of
traditional fossil fuels, as well as other alternative energy
providers. We believe that there are several aspects of our
business that provide us with a competitive advantage over
providers of conventional fossil fuels. First, we believe that
the sustainable, “green” aspect of our business, when
contrasted against traditional fossil fuels and their associated
environmental impacts, is appealing to certain customers.
Additionally, we believe that we can compete well on cost. For
example, we believe that prices for our renewable diesel are not
prone to the same risks as traditional fossil fuels. This is a
result of our ability to create renewable diesel from more
widely available sources. In addition, we plan to sell our
renewable diesel to customers within a
100-mile
radius of our facilities, thereby incurring relatively lower
shipping costs. We also compete with other alternative energy
providers, predominantly producers of ethanol and biodiesel. We
believe that we compare favorably to both of these products
given our significantly higher net energy balance, and we can
compete well on cost. We also believe the quality of our fuel is
superior to these alternative products. Recently, there have
been complaints regarding the alcohol content of ethanol and
biodiesel, as alcohol is known to undermine the efficacy of
these fuels. Our renewable diesel does not contain any alcohol.
Lastly, unlike ethanol and some forms of biodiesel, production
of our renewable diesel does not require the use of food crops
as feedstock. Therefore, we avoid many of the unintended
consequences associated with the production of both ethanol and
biodiesel, most notably contributing to rising food prices.
In selling our fertilizers, we compete against purveyors of
traditional fertilizers. Many conventional fertilizers are
produced by large entities with greater financial and other
resources than
we do, which can give them a competitive advantage. Similar to
our renewable diesel, we plan to sell our fertilizers to
customers within a
100-mile
radius of our facilities, thereby incurring relatively lower
shipping costs.
Intellectual
Property Rights
Our commercial success will depend in part on obtaining and
maintaining patent protection and trade secret protection of
both our owned and licensed technologies as well as successfully
defending these patents against third-party challenges, which
may require the cooperation of our licensor. Our patent policy
is to retain and secure patents for inventions and improvements
related to our technologies where commercially warranted.
Currently, all patents and patent applications are owned by
AB-CWT, a related company.
We have an exclusive, worldwide license to the seven issued
U.S. patents, five additional pending U.S. patent
applications and 51 issued foreign patents and pending foreign
patent applications, a subset of which are directed to our
proprietary TCP technology as currently implemented, from
AB-CWT
through RRC, our wholly-owned subsidiary. The terms of these
patents will expire between November 1, 2011 and
September 29, 2026 (the latter date assumes patents issue
on pending patent applications). The license grants us the right
to make, operate, maintain, market, sublicense, use, sell, offer
to sell or lease the licensed TCP technology, and related
equipment, TCP process or apparatus, and any modifications of
the foregoing, whether patentable or not, and all methods and
devices for carrying on the TCP technology into practice. We may
also grant sublicenses to business organizations or individuals
that will use the TCP process utilizing the licensed technology,
subject to certain specified conditions. In addition, provided
RRC is in compliance with its obligations under the license
agreement, AB-CWT has agreed to grant to RRC, at no additional
costs, exclusive licenses under any and all patents received on
any modifications of the licensed TCP technology conceived or
actually or constructively reduced to practice or otherwise
acquired during the term of the license agreement or any
extensions, amendments or replacements thereof.
The license is automatically renewable each year and will
terminate upon the expiration of the last to expire patents
licensed to CWT unless RRC provides written notice to terminate
or either party fails to cure a breach, is convicted of an act
of fraud or material dishonesty or criminal activity, RRC
transfers or assigns its licensed rights without AB-CWT’s
prior written consent, RRC fails to pay royalties or in the
event of bankruptcy or insolvency by RRC. Upon the completion
date of each commercial installation of any apparatus, machinery
or device designed to practice the licensed technology
(“Licensed Apparatus”) by RRC, RRC agrees to pay an
initial one-time license fee in a lump sum amount equal to $2
per day multiplied by the tonnage capacity of each such Licensed
Apparatus multiplied by 365 days. RRC also is required to
pay minimum monthly royalty fees based on the usage of the
Licensed Apparatus in an amount equal to $2 multiplied by each
ton of material actually processed monthly by RRC through the
Licensed Apparatus. RRC has also agreed to pay other fees as
provided in the license agreement. AB-CWT has the right to
terminate this exclusive license for our nonpayment of royalties
or our breach of agreement, if either of which default remains
uncured, or in the event we transfer or assign any of our
exclusively licensed rights without the prior written consent
from AB-CWT. Upon a change of control of our company, AB-CWT has
the right to terminate our exclusive license, which could have
the effect of delaying, preventing or deterring a change of
control of our company, could deprive our stockholders of an
opportunity to receive a premium for their common stock as part
of a sale of the Company and might ultimately affect the market
price of our common stock.
In July 2002, we, along with AB-CWT, entered into a settlement
agreement with Paul T. Baskis, one of the original inventors of
the technology underlying TCP, to terminate a civil action.
Pursuant to the settlement agreement, we and
AB-CWT are
jointly and severally liable to pay $10,000 per month until the
last to expire of certain patents licensed to us by AB-CWT. We
are liable for this payment through October 2012. Further, for a
period ending on the expiration of such patents,
Mr. Baskis has agreed not to provide services of any kind
to anyone relating to TCP. Further, in the event that
Mr. Baskis invents or develops any new technology that he
believes to be a substitute or replacement for TCP,
Mr. Baskis is obligated to notify us prior to disclosing or
offering rights in such new invention to any third party and we
have a right of first offer to license or otherwise acquire
rights to such new invention on fair and reasonable terms to be
negotiated in good faith.
We also rely on trade secrets, technical know-how and continuing
innovation to develop and maintain our competitive position. We
seek to protect our proprietary information by requiring our
employees, consultants, contractors, outside partners and other
advisers to execute, as appropriate, nondisclosure and
assignment of invention agreements upon commencement of their
employment or engagement. We also require confidentiality
agreements from third parties that receive our confidential data
or materials.
Renewable Diesel
Mixture Tax Credit
We benefit from tax credits we receive for being a producer of
renewable diesel. Under the Energy Policy Act, producers of
renewable diesel currently receive a $1.00 renewable diesel
mixture tax credit for each gallon of renewable diesel sold in
the United States. Renewable diesel is defined in the Energy
Policy Act as liquid fuel derived from biomass that meets
certain standards of the Environmental Protection Agency and the
American Society of Testing and Materials. Our renewable diesel
meets this criteria. Because we have no fuel excise tax payable,
we receive a direct cash payment from the U.S. Treasury. The
renewable diesel mixture tax credit is scheduled to expire on
December 31, 2009.
Regulations
We are subject to the rules and regulations promulgated by
various federal, state and local governmental agencies. Our
Carthage facility and our research and development facility in
Philadelphia are subject to rules and regulations set forth by
the U.S. Environmental Protection Agency, as well as state and
local agencies, which regulate air emissions, odor, storm water,
sewer, water and wastewater. Because of the nature of our
operations, our Carthage facility and our research and
development facility in Philadelphia are exempt from state solid
waste permitting requirements. The marketing of our fertilizers
is regulated by the State Departments of Agriculture, which
control the registration of fertilizer products, licensing of
manufacturers, label information, inspections and various other
aspects associated with the marketing of fertilizers. One of our
fertilizers is currently registered in Kansas, Missouri and
Oklahoma as a commercial fertilizer. We are also subject to
various labor, health and pension regulations, which, among
others, includes the Employee Retirement Income Security Act and
regulations governing employee health and safety set forth by
the Occupational Safety and Health Administration. The U.S.
Department of Transportation, as well as state and local
agencies, regulate the operation of our commercial vehicles. In
addition, we are subject to regulation by the U.S. Department of
the Treasury associated with the renewable diesel mixture tax
credit we receive under the Energy Policy Act, and various rules
and regulations promulgated by the Securities and Exchange
Commission.
Research and
Development
Our research and development costs for the nine months ended
September 30, 2008 and years ended 2007, 2006 and 2005 were
$0.9 million, $1.2 million, $1.7 and $2.0 million,
respectively. Our research and development activities include
testing of new waste feedstock, including animal and food
processing waste, trap grease, used oils, shredder residue
waste, cellulosic feedstock and sewage sludge. In doing so, we
research and test composition of matter, chemical pathways,
material handling, metallurgy, equipment selection, fuel
delivery systems and life cycle assessments for continued
refinement of TCP’s application. We also conduct fuel
analysis to determine compatibility,
water absorption, storage and thermal stability, pour point,
viscosity, nitrogen and sulfur content and trace elements that
may influence product use.
Employees
As of December 31, 2008, we had 72 full-time
employees, including seven engaged in research and
development at our Philadelphia facility and 50 at our Carthage
facility. None of our employees are represented by any labor
union nor are any organized under a collective bargaining
agreement. We have never experienced a work stoppage, and
believe that our relations with our employees are good.
Facilities and
Property
We own our Carthage facility located at 530 N. Main St,
Carthage, Missouri, where we lease 2.8 acres of land
pursuant to a lease that is set to expire in April 2027. We also
lease 79,000 square feet in Philadelphia, Pennsylvania for
our research and development facility under a lease that is set
to expire in August 2010. Our principal executive offices are
located at 460 Hempstead Avenue, West Hempstead, New York11552,
where we lease 5,395 square feet on a month-to-month basis.
Legal
Proceedings
On January 11, 2006, the Attorney General of the State of
Missouri filed an action against RES in the Circuit Court of
Jasper County, Missouri seeking preliminary and permanent
injunctions and civil penalties for alleged violations of
Missouri’s odor standard at our Carthage facility and for
alleged violations of our state air permit. We settled this case
pursuant to a consent judgment entered by the court on
June 27, 2006. In conjunction with these claims, we also
resolved an administrative action brought by the Missouri
Department of Natural Resources, or MDNR, relating to a cease
and desist order associated with the alleged violations of
Missouri’s odor standard we received from the MDNR on
December 29, 2005. These matters were settled by RES by
agreeing to pay a $175,000 fine. RES paid $100,000 of the fine
and the remaining $75,000 was suspended for two years unless RES
received additional notices of violation under the Missouri odor
standards. If RES received a notice of violation during this
period, it agreed that the $75,000 suspended penalty would be
used to pay a $25,000 stipulated fine for up to three
subsequently charged violations. On November 15, 2006 we
received a notice of excess emission that was subsequently
upgraded to a notice of violation. On December 11, 2006,
RES agreed to pay $25,000 for this violation. Since
November 15, 2006, RES has not received any notices of
violation of the Missouri odor standards, and the two-year
suspended penalty period under the settlement agreement has now
ended.
On June 5, 2007, a resident of Carthage, Missouri filed a
class action petition against RES and Donald Sanders, the
manager of our Carthage facility, in the Circuit Court of Jasper
County, Missouri on behalf of herself and others similarly
situated. Plaintiff alleges that the odor associated with the
RES Carthage facility creates a nuisance, and that the
defendants are negligent. Plaintiff’s original petition
included a claim of negligence per se that was dismissed by the
court. Plaintiff seeks compensatory damages, punitive damages,
injunctive relief and attorneys’ fees and costs. The dollar
amount of damages sought was not specified in the petition. On
April 24, 2008, an amended petition was filed redefining
the scope of the class area to three kilometers from our
Carthage facility and adding an additional class representative.
On November 14, 2008, plaintiffs filed a Motion for Leave
to file a Second Amended petition redefining the scope of the
proposed class to include a global nuisance class within a three
kilometer radius of RES
and/or real
property diminution subclass of two kilometers of RES.
Plaintiffs filed their motion for class certification on
November 5, 2008. Defendants filed a renewed motion to
transfer venue, motions to strike Plaintiffs’ experts, and
a motion for partial summary judgment. These motions are
currently being briefed and no hearing on them has been
scheduled. We are defending the lawsuit vigorously. We have
notified our insurance
carriers of this claim. One insurer has tendered a defense under
a reservation of rights. We intend to pursue our claim for
coverage.
On January 14, 2008, we received a letter from the MDNR
regarding alleged violations of our air permit and a state
emission limitation. Our consultants submitted a response to the
state on February 27, 2008, and submitted a protocol for
stack testing.
On February 7, 2008, Select Insurance Company filed a
petition in the U.S. District Court for the Western
District of Missouri to seek a declaratory judgment as to
whether Select Insurance Company is required to defend and
indemnify us and Donald Sanders, the manager of our Carthage
facility, in the class action litigation discussed above. A
mediation was held on November 13, 2008. Following the
mediation, the case was stayed until the earlier of four weeks
after a decision on class certification or April 30, 2009.
The MDNR has been investigating and continues to investigate the
source of odor in the Carthage Bottoms area. In June of 2008,
the MDNR issued a letter to several businesses in the Carthage
Bottoms area seeking to convene a meeting of all industrial
facilities in the area and stating that the first phase of the
investigation did not identify specific sources for the odor or
chemical compounds of interest. The group meeting with the MDNR
was held on August 25, 2008. We will continue to cooperate
with the MDNR in this effort.
On May 23, 2003, RES filed a lawsuit in the Circuit Court
of Jasper County, Missouri against Dilling Mechanical
Contractors, or Dilling, the original mechanical contractor for
the construction of our Carthage facility. The complaint, among
other things, alleges claims for breach of contract, negligence
and fraud stemming from defective welding and other infirmities
associated with Dilling’s work on the Carthage facility. We
are seeking damages in excess of $5.0 million. In July
2003, Dilling filed a countersuit seeking amounts in excess of
$5.0 million from RES. The countersuit asserts, among other
things, that the work Dilling performed exceeded the mechanical
contractor agreement, and it claims damages flowing from
Dilling’s alleged wrongful termination. Because RES
constructed its Carthage facility on property then owned by
ConAgra, Dilling, together with its insulation subcontractor,
have brought additional third party claims against ConAgra in
this proceeding. The third-party claims include the enforcement
of a mechanic’s lien which they have filed in connection
with the land upon which the Carthage facility is situated. The
liens are in the amounts of approximately $3.0 million and
$3.8 million. RES is defending ConAgra in the action and
has agreed to indemnified ConAgra. The case is currently in the
expert discovery phase. The outcome of the dispute cannot be
determined at this time, but we believe that this matter will
not have a material adverse affect on our financial position.
In addition to the matters discussed above, from time to time,
we are party to litigation and administrative proceedings that
arise in the ordinary course of our business. We do not have any
other pending litigation that, separately or in the aggregate,
would in the opinion of management have a material adverse
effect on our results of operations or financial condition.
The following table sets forth the name and age as of
December 31, 2008 and position of each person that serves
as an executive officer and director of our company.
Name
Age
Position
Brian S. Appel
50
Chief Executive Officer and Chairman of the Board of Directors
Michael J. McLaughlin
57
Chief Financial Officer
James H. Freiss
46
Chief Operating Officer
Dan F. Decker
62
Executive Vice President
Joseph P. Synnott
51
Vice President of Project Development
David C. Carroll
52
Director
Jerome Finkelstein
71
Director
David M. Katz
45
Director
Saul B. Katz
69
Director
Michael D. Lundin
49
Director
Ira B. Silver
50
Director
Michael D. Walter
59
Director
Suzanne Woolsey, PhD
67
Director
Brian S. Appel has been the Chairman of our board of
directors and Chief Executive Officer since he founded our
company in February 1998. Mr. Appel initiated the TCP
research and development facility in Philadelphia, Pennsylvania
in 1999. In December 2003, under Mr. Appel’s
leadership, our company was named to the Scientific American 50,
a list of people or companies recognized for their singular
accomplishments contributing to the advancement of technology,
in the category of energy. Prior to founding our company,
Mr. Appel was the principal of Atlantis International, an
international trading company. From 1983 to 1985, he was a
principal of Ticket World USA, currently Ticketmaster, where he
was responsible for business development. Mr. Appel is a
member of the American Council on Renewable Energy, an
organization that works to bring all forms of renewable energy
into the mainstream of America’s economy and lifestyle.
Mr. Appel has authored several papers on TCP. He received
his undergraduate degree from Hofstra University.
Michael J. McLaughlin has been our Chief Financial
Officer since September 2008. Prior to joining us,
Mr. McLaughlin was vice president of finance and chief
financial officer for Integrated Resources Holdings, Inc.,
formerly A.T. Clayton & Co., Inc., a paper
distributor, from 1993 to 2008. During his career,
Mr. McLaughlin has held executive positions in different
industries, including consumer products, manufacturing,
distribution and consulting service. He is a certified public
accountant and is a member of the bar of the State of New York.
He received his undergraduate degree in Accounting from
Manhattan College, an MBA in Tax from St. John’s University
and a JD from Pace University.
James H. Freiss has been our Chief Operating Officer
since August 2008 and was previously our Vice President of
Engineering. Prior to joining us in 2001, Mr. Freiss was
director of environmental affairs for ContiGroup Companies,
Inc., or ContiGroup, a grain trading firm, from 1992 to 2001. At
ContiGroup, Mr. Freiss was responsible for environmental
management oversight and led research and development programs
aimed at sustainable environmental technologies for agriculture.
Prior to his tenure with ContiGroup, Mr. Freiss worked as
an environmental consultant designing wastewater and water
treatment facilities with CABE Associates, Inc., a provider
of environmental and civil engineering services. Prior to that,
Mr. Freiss worked as a construction and maintenance manager
with Perdue Farms, Inc., a food and agricultural company.
Mr. Freiss has chaired and participated in many agriculture
related industry associations and committees, holds multiple
patents involving
agricultural waste management and has published numerous papers
on wastewater management issues. Mr. Freiss received his
undergraduate degree in Agricultural Engineering from
Pennsylvania State University and obtained his Professional
Engineering license from the State of Delaware.
Dan F. Decker has been our Executive Vice President since
August 2008 and was previously our Acting Chief Operating
Officer. Prior to joining us in June 2007, Mr. Decker
was vice president of technical operations for ContiGroup from
1999 to 2007. Mr. Decker has extensive experience and
expertise in both process and general management and has over
25 years experience in operational, production and
logistics management of oilseed processing operations in North
America, South America, Europe and Australia. In addition,
Mr. Decker has a background in the management of commodity
related businesses and experience in joint venture development
and construction management. Mr. Decker received his
undergraduate degree in Accounting and Business Administration
from Eastern Illinois University.
Joseph P. Synnott has been our Vice President of Project
Development since September 2008. Prior to joining us in
September 2008, Mr. Synnott was a director with the North
American Energy Team of AllCapital (US) LLC, or AllCapital, an
Australian manager of alternative investments, from
March 2007 to August 2008. At AllCapital,
Mr. Synnott supervised development of green field
inter-regional transmission lines and led the acquisition and
integration of a portfolio of generating facilities. From
November 1995 to July 2006, Mr. Synnott was a
senior director at Duke Energy North America LLC where he was
responsible for acquisition and divestiture activities as well
as a member of various project management committees assisting
with the resolution of issues affecting the firm’s
development projects. Mr. Synnott has also held positions
with Consolidated Energy Company and General Electric Company.
He received his undergraduate degree in Electrical Engineering
from Polytechnic Institute of New York and an MA in Engineering
from Purdue University.
David C. Carroll has been a member of our board of
directors since November 2006. Mr. Carroll has been
president and chief executive officer of Gas Technology
Institute, or GTI, a research, development and training
organization serving energy and environmental markets, since
August 2006. Mr. Carroll joined GTI in 2001 as vice
president of business development and was named acting president
in January 2006. Mr. Carroll serves on the board of
directors of Versa Power Systems, a developer of solid oxide
fuel cells. He received his undergraduate degree from the
University of Pittsburgh and an MBA from Lehigh University.
Jerome Finkelstein has been a member of our board of
directors since October 2002. Mr. Finkelstein is the
President of Max Finkelstein, Inc., a wholesale tire
distributor, where he has served in various capacities since
1959 and is currently a member of its board of directors. He
received his undergraduate degree from Queens College.
Mr. Finkelstein is the father-in-law of Ira B. Silver,
who is also a member of our board of directors.
David M. Katz has been a member of our board of directors
since 2003. Mr. Katz has been with Sterling Equities, Inc.,
a family of companies, focused on the creation of wealth and
preservation of capital, and has served as its partner since
1987. Mr. Katz has developed commercial and residential
properties, overseen condominium conversions and evaluated
acquisition opportunities. Mr. Katz serves on the board of
directors of Twistage, a white label online video platform, the
New York Mets and the School for Language and Communication, a
school for children with language and autism disorders.
Mr. Katz is also president of the Henry Kaufmann
campgrounds, a non-profit organization that provides a day
camping experience to children. Mr. Katz received his
undergraduate degree from Hofstra University. Mr. Katz is
the son of Saul B. Katz, who is also a member of our board of
directors.
Saul B. Katz has been a member of our board of directors
since 2000. Mr. Katz co-founded Sterling Equities, Inc., a
family of companies focused on the creation of wealth and
preservation of capital, in 1972 and served as its president and
chief operating officer from 1972 to 2008. Mr. Katz is
president and a member of the board of directors of the New York
Mets and has served as president of the Brooklyn Baseball
Company, owner of the Brooklyn Cyclones, since 2001. He is also
a member of the board of directors for Sterling Stamos Capital
Management L.P., a private investment firm, the Brooklyn College
Foundation and the Jewish Association for the Aged, the chair of
the Real Estate Committee for the United Jewish Association, and
he serves as chairman for the North Shore Long Island Jewish
Hospital. Mr. Katz is a certified public accountant and
received his undergraduate degree from Brooklyn College.
Mr. Katz is the father of David M. Katz, who is also a
member of our board of directors.
Michael D. Lundin has been a member of our board of
directors since February 2008. Mr. Lundin has been a
partner at Resilience Capital, a private equity firm, since June
2008. Prior to his involvement with Resilience Capital, from
April 2000 to February 2008, Mr. Lundin served as
president, chief executive officer and as a member of the board
of directors of the Oglebay Norton Company, or Oglebay, a
provider of minerals and aggregates to a broad range of markets.
Oglebay filed a voluntary petition under Chapter 11 of the
U.S. Bankruptcy code in February 2004, and upon a successful
plan of reorganization, was acquired by Charmeuse
Lime & Stone in February 2008. Mr. Lundin is
a member of the board of directors of Rand Logistics, Inc., a
service shipping company, and Avtron, Inc., a designer and
manufacturer of electrical control and test equipment. He
received his undergraduate degree from the University of
Wisconsin and an MBA from Loyola Marymount University.
Ira B. Silver has been a member of our board of directors
since October 1998. Mr. Silver has been a vice president of
Max Finkelstein, Inc., a wholesale tire distributor, since July
1990, serves as its chief operating officer and is a member of
its board of directors. From January 1980 to June 1990,
Mr. Silver served as a partner at Fischer, Silver and
Martorella, a certified public accounting firm. He received his
undergraduate degree from Hofstra University and is a certified
public accountant. Mr. Silver is the
son-in-law
of Jerome Finkelstein, who is also a member of our board of
directors.
Michael D. Walter has been a member of our board of
directors since 2003. Mr. Walter is the chief executive
officer of Mike Walter & Associates, a risk management
consulting firm providing strategic guidance in general business
and economic trends. He also serves as president of the
Commodity Markets Council where he focuses on global market and
risk management issues. Mr. Walter spent 18 years in
senior leadership positions at ConAgra and 12 years in
commodity management at General Mills, both branded foods
companies. At ConAgra, he led their international processing
expansion. He also directed ConAgra’s worldwide commodity
positions and capitalized on related opportunities including the
company’s practices and systems related to the trading and
procurement of agricultural and non-agricultural commodities.
Mr. Walter is a member of the board of directors of Agro
Tech Foods, an India-based company engaged in the business of
marketing food and food ingredients, Ag Processors Alliance, a
holding company, and serves as chairman of the board of
directors of European Oat Millers, a specialty cereal ingredient
manufacturer based in the United Kingdom. Mr. Walter also
served for 17 years as a director of the Chicago Board of
Trade on both its audit and compensation committees. He received
his undergraduate degree from Eastern Illinois University.
Suzanne Woolsey, PhD has been a member of our board of
directors since July 2008. Dr. Woolsey has served as
managing general partner of Van Kampen Fund, a mutual fund,
since 2003. From 2001 to 2003, Dr. Woolsey served as chief
communications officer of the National Academy of
Sciences/National Research Council, an independent, federally
chartered policy institution, and from 1993 to 2001, she served
as their chief operating officer. Dr. Woolsey is a
member of the board of directors of Fluor Corporation, an
engineering, procurement and construction organization, and
serves on their audit and governance committees.
Dr. Woolsey also serves on the board of directors of
Intelligent Medical Devices, Inc., which provides symptom-based
diagnostic tools for physicians and clinical labs, the Institute
for Defense Analyses, a federally funded research and
development center, the German Marshall Fund of the United
States, a nonpartisan American public policy and grant making
institution, Van Kampen Investments, a mutual fund, and the
Rocky Mountain Institute, an organization dedicated to the
efficient restorative use of resources. Dr. Woolsey serves
as trustee of the California Institute of Technology and
Colorado College. Dr. Woolsey received her undergraduate
degree from Stanford University and MA and PhD degrees from
Harvard University.
Board of
Directors
Our business and affairs are managed under the direction of our
board of directors. Our bylaws will provide that our board of
directors will consist of between three and fifteen directors.
Upon the consummation of this offering, the board will be
composed of nine directors.
Our executive officers and key employees serve at the discretion
of our board of directors.
Director
Independence
Our board of directors has affirmatively determined that
Dr. Suzanne Woolsey, and Messrs. Michael D. Walter and
Michael D. Lundin are independent directors under the applicable
rules of the NYSE Alternext and as such term is defined in Rule
10A-3(b)(1) under the Exchange Act. In accordance with NYSE
Alternext rules, a majority of our directors will be independent
within one year from the effective date of our registration
statement for this offering.
Board
Committees
After this offering, our board of directors will have four
standing committees: an executive committee, an audit committee,
a nominating and corporate governance committee and a
compensation committee.
Executive Committee. The primary purpose of
the executive committee is to exercise powers of the board of
directors when the board of directors is not in session, or when
it is impractical to assemble the entire board of directors. The
committee will regularly report to the board of directors
committee findings, recommendations and actions, and any other
matters the committee deems appropriate or the board of
directors requests.
Our executive committee currently consists of Messrs. David
M. Katz, Michael D. Lundin, Ira B. Silver and Michael D. Walter.
Upon the consummation of this offering, our executive committee
will consist of Messrs. Michael D. Lundin, David M. Katz,
Michael D. Walter and Ira B. Silver. Mr. Michael D. Lundin
will serve as chairman of the executive committee.
Audit Committee. The primary purpose of the
audit committee is to assist the board’s oversight of:
•
the integrity of our financial statements;
•
our systems of internal control over financial reporting and
disclosure controls and procedures;
•
our compliance with legal and regulatory requirements;
•
our independent auditors’ qualifications and independence;
the performance of our independent auditors and our internal
audit function; and
•
the application of our related person transaction policy.
The audit committee will also prepare the report required to be
prepared by the committee pursuant to Securities and Exchange
Commission rules.
Our audit committee currently consists of
Messrs. Ira B. Silver and Michael D. Walter and
Dr. Suzanne Woolsey. Upon the consummation of this
offering, our audit committee will consist of Dr. Suzanne
Woolsey and Messrs. Michael D. Walter and Ira B. Silver.
Dr. Suzanne Woolsey will serve as chairman of the audit
committee and also qualifies as an independent “audit
committee financial expert” as such term has been defined
by the Securities and Exchange Commission in Item 401(h)(2)
of
Regulation S-K.
In accordance with the rules of the NYSE Alternext and relevant
federal securities laws and regulations, Dr. Suzanne
Woolsey and Mr. Michael D. Walter are independent within
the meaning of such rules. We intend to replace Mr. Ira B.
Silver with an independent director within one year from the
effective date of our registration statement for this offering.
Nominating and Corporate Governance
Committee. The primary purpose of the nominating
and corporate governance committee will be to:
•
identify and recommend to the board individuals qualified to
serve as directors of our company;
•
advise the board with respect to the board composition;
•
develop and recommend to the board a set of corporate governance
guidelines and principles applicable to us; and
•
review the overall corporate governance of our company and
recommend improvements when necessary.
Our nominating and corporate governance committee currently
consists of Messrs. Michael D. Lundin and Michael D. Walter
and Dr. Suzanne Woolsey. Upon the consummation of this
offering, our nominating and corporate governance committee will
consist of Messrs. Michael D. Lundin and Michael D. Walter
and Dr. Suzanne Woolsey. Mr. Michael D. Lundin will
serve as the chairman of the executive and corporate governance
committee. Messrs. Michael D. Lundin and Michael D. Walter and
Dr. Suzanne Woolsey are independent within the meaning of the
rules of the NYSE Alternext and the relevant federal securities
laws and regulations.
Compensation Committee. The primary purpose of
our compensation committee is to:
•
review and authorize, subject to further action of the board of
directors, the compensation and benefits of our executive
officers and key employees;
•
monitor and review our compensation and benefit plans;
•
administer our stock and other incentive compensation plans and
programs and prepare recommendations and periodic reports to the
board of directors concerning these matters;
•
prepare the compensation committee report required by the rules
of the Securities and Exchange Commission to be included in our
annual report;
•
prepare recommendations and periodic reports to the board of
directors as appropriate; and
•
review the form and amount of director compensation.
Our compensation committee currently consists of
Messrs. Brian S. Appel, Saul B. Katz, Ira B.
Silver and Michael D. Walter. Upon the consummation of this
offering, our compensation committee will consist of
Messrs. Michael D. Walter, Saul B. Katz and Ira B. Silver.
Mr. Michael D. Walter will serve as chairman of the
compensation committee. Mr. Michael D. Walter is
independent within the meaning of the rules of the NYSE
Alternext and the relevant federal securities laws and
regulations.
Compensation
Committee Interlocks and Insider Participation
Upon the completion of this offering, none of our executive
officers will serve on the compensation committee or board of
directors of any other company of which any of the members of
our compensation committee or any of our directors is an
executive officer.
Code of
Ethics
Upon completion of this offering, we will adopt a written code
of ethics applicable to our directors, officers and employees in
accordance with the rules of the NYSE Alternext and the
Securities and Exchange Commission. Our code of ethics will be
designed to deter wrongdoing and to promote:
•
honest, ethical and lawful conduct;
•
full, fair, accurate, timely and understandable disclosure in
reports and documents that we file with the Securities and
Exchange Commission and in our other public communications;
•
compliance with applicable governmental rules and regulations,
including insider trading compliance; and
•
accountability for adherence to the code and prompt internal
reporting of violations of the code, including illegal or
unethical behavior regarding accounting or auditing practices.
The audit committee of our board of directors will review our
code of ethics periodically and report regularly to the board of
directors on findings and recommendations. Our code of ethics
will be posted on our website.
Prior to the consummation of this offering, all compensation
decisions relating to our executive officers were determined by
management and our compensation committee. Generally, the salary
of Mr. Appel and the other executive officers are proposed
by management and our compensation committee as part of the
budget process.
Compensation for
Executive Officers During 2008
Our compensation approach has historically been tied to our
stage of development. During 2008, executive compensation was
determined by our compensation committee based on a number of
subjective factors, including, our performance during the year,
improving the operating performance of our Carthage facility,
developing potential sites and transactions for the
establishment of additional facilities, attracting and retaining
operating and financial professionals and executives and
managing our day-to-day business affairs. Our compensation
approach, including the balance of short-term versus long-term
payments and awards, and the use of cash payments versus equity
awards, is designed to attract, retain and motivate the best
possible executive talent, align the executives’ incentives
with the creation of stockholder value, to reward the time and
effort dedicated by executive officers to our company and foster
a shared commitment among executive officers by aligning their
individual goals with the goals of the executive management
team, our company and our stockholders.
During 2008, compensation to our executive officers consisted of
a base salary, bonuses and equity awards. Executive compensation
was determined at the discretion of the compensation committee
based on the experience and judgment of the members of our
compensation committee. We believe that the base salary element
is required in order to provide our executive officers with a
stable income stream that is commensurate with their
responsibilities, their experience with us and in the industry
and competitive market conditions. We believe that bonuses focus
our executive officers’ efforts and reward executive
officers for annual performance in relation to our annual
operational goals. We believe that our long-term performance is
fostered by compensation through the use of equity-based awards,
such as stock option awards, which provides them with a
continuing stake in our long term success.
During 2007 and 2008, Mr. Appel was paid a salary that was
determined by an annual review by our compensation committee.
Mr. Appel was paid a bonus for 2007. Mr. Appel’s
salary was initially determined by our compensation committee
based upon a number of subjective factors, including, our
performance during the year, the ability to attract and retain
operating and financial professionals and executives, improving
the operating performance of our Carthage facility, developing
potential sites and transactions for the establishment of
additional facilities and the time and effort dedicated by
Mr. Appel to the management and administration of our
day-to-day business affairs. In addition, Mr. Appel
received equity awards as set forth in the Summary Compensation
Table below. The ultimate salary and equity award amounts were
determined at the discretion of the compensation committee based
on the experience and judgment of the members of our
compensation committee. Mr. Appel recused himself from all
decisions regarding his compensation. We believe these awards
continue to align Mr. Appel’s interests as an employee
with those as an owner.
Mr. McLaughlin joined our company as our Chief Financial
Officer in September 2008, and he was paid a salary that was
determined by our compensation committee based on a salary
amount negotiated at the time of his hire.
During 2007 and 2008, Mr. Freiss was paid a salary and a
bonus that was determined by an annual review by our
compensation committee. Mr. Freiss’ salary was
determined by our compensation committee based upon a number of
factors, including our performance during the year, the ability
to attract and retain operating and financial professionals and
executives whose knowledge,
skills and performance are critical to our success, competitive
factors and the time and effort dedicated by Mr. Freiss to
the management and administration of our day-to-day business
affairs. In addition, Mr. Freiss received equity awards as
set forth in the Summary Compensation Table below.
Mr. Decker became our Executive Vice President in August
2008. He previously was a consultant to our company and acted as
our Acting Chief Operating Officer. Mr. Decker was paid a
salary that was determined by our compensation committee.
Mr. Decker’s salary was determined by our compensation
committee based upon a number of factors, including the ability
to attract and retain operating and financial professionals and
executives whose knowledge, skills and performance are critical
to our success, competitive factors and the time and effort
dedicated by Mr. Decker to the management and
administration of our day-to-day business affairs. In addition,
Mr. Decker received equity awards as set forth in the
Summary Compensation Table below.
Mr. Synnott joined our company as our Vice President of
Project Development in September 2008, and he was paid a salary,
pursuant to the terms of his employment agreement, dated
August 13, 2008, which was negotiated at the time of his
hire.
Expected
Compensation Policies
The following discussion relates to our anticipated policies and
practices relating to officer compensation following this
offering.
As soon as practicable after the consummation of this offering,
the compensation committee of the board of directors will be
responsible for implementing and administering all aspects of
our benefits and compensation plans and programs. All of the
members of our compensation committee will be independent
directors. While we expect the compensation committee to follow
these policies, it is possible that the compensation committee
may develop a compensation philosophy different than that
discussed here.
The primary objectives of the compensation committee with
respect to executive compensation will be to attract, retain and
motivate the best possible executive talent. The focus is to tie
short and long-term cash and equity incentives to achievement of
measurable corporate and individual performance objectives, and
to align executives’ incentives with the creation of
stockholder value. To achieve these objectives, the compensation
committee will implement compensation plans that tie a
substantial portion of executives’ overall compensation to
our commercial and operational performance and the
implementation of our expansion plans.
Management will develop our compensation plans by utilizing
publicly available compensation data and subscription
compensation survey data for national and regional companies in
comparable or similar industries, with similar organizational
structures. We believe that this will provide us with
appropriate compensation benchmarks, because these companies
tend to compete with us for executives and other employees. For
benchmarking executive compensation, we plan to review the
compensation data we have collected from the complete group of
companies, as well as a subset of the data from those companies
that have a similar number of employees as our company. We may
also engage experienced consultants and other advisors to help
us analyze these data and to compare our compensation programs
with the practices of the companies represented in the
compensation data we review.
Based on management’s analyses and recommendations, the
compensation committee will develop a pay-for-performance
compensation philosophy, with the intention of bringing base
salaries and total executive compensation in line with companies
with similar characteristics in the compensation data we review.
We anticipate using the following factors to determine each
component of an executive’s initial compensation package:
•
the individual’s particular background and circumstances,
including training and prior relevant work experience;
•
the individual’s role with us and the compensation paid to
similar persons in the companies represented in the compensation
data that we review;
•
the demand for individuals with the individual’s specific
expertise and experience at the time of hire;
•
performance goals and other expectations for the position;
•
comparison to other executives within our company having similar
levels of expertise and experience; and
•
uniqueness of industry skills.
The compensation committee will also implement an annual
performance management program, under which annual performance
goals are determined and set forth in writing each year for the
Company as a whole and each individual employee in a position to
influence our ability to achieve our goals. Annual corporate
goals will be proposed by management as part of our budget
process and approved by the board of directors at the end of
each year for the following year. These corporate goals will
target the achievement of specific operational and business
goals. Individual goals will focus on contributions that
facilitate the achievement of the corporate goals and will be
set each year. Individual goals will be proposed by each
employee and approved by his or her direct supervisor and the
direct supervisor’s manager, if applicable. The Chief
Executive Officer and the compensation committee will approve
the goals proposed by our other executive officers, while the
Chief Executive Officer’s goals will be approved by the
compensation committee. Annual salary increases, annual bonuses,
and annual stock option awards granted to our employees will be
tied to the achievement of these corporate and individual
performance goals.
We intend to perform interim assessments of the goals and our
operating performance every year to determine individual and
corporate progress against the previously established goals and
to make any adjustments to the goals for the remainder of the
year based on changing circumstances.
During the first quarter, we intend to evaluate individual and
corporate performance against the written goals for the recently
completed year. Consistent with our compensation philosophy,
each employee’s evaluation will begin with a written
self-assessment, which is submitted to the employee’s
supervisor. The supervisor will then prepare a written
evaluation based on the employee’s self-assessment, the
supervisor’s own evaluation of the employee’s
performance, and input from others within the Company. This
process will lead to a recommendation for annual employee salary
increases, annual stock option awards, and bonuses, if any,
which will then be reviewed and approved by the compensation
committee. Our executive officers, other than the Chief
Executive Officer, will submit their self-assessments to the
Chief Executive Officer, who performs the individual evaluations
and submits recommendations to the compensation committee for
salary increases, bonuses, and stock option awards. In the case
of the Chief Executive Officer, his individual performance
evaluation will be conducted by the compensation committee,
which will determine his compensation changes and awards. For
all employees, including our executive officers, annual base
salary increases, annual stock option awards and annual bonuses,
to the extent granted, will be implemented during the first
calendar quarter of the year.
The components of our compensation package are as follows:
Base
Salary
Base salaries for our executives are established based on the
scope of their responsibilities and their prior relevant
background, training and experience, taking into account
competitive market compensation paid by the companies
represented in the compensation data we review for similar
positions and the overall market demand for such executives at
the time of hire. As with total executive compensation, we
believe that executive base salaries should generally be in the
range of salaries for executives in similar positions and with
similar responsibilities in the companies of similar size to us
represented in the compensation data we review. An
executive’s base salary is also evaluated together with
other components of the executive’s other compensation to
ensure that the executive’s total compensation is in line
with our overall compensation philosophy.
Base salaries are reviewed annually as part of our performance
management program and increased for merit reasons, based on the
executive’s success in meeting or exceeding individual
performance objectives and an assessment of whether significant
corporate goals were achieved. If necessary, we also realign
base salaries with market levels for the same positions in the
companies of similar size to us represented in the compensation
data we review, if we identify significant market changes in our
data analysis. Additionally, we adjust base salaries as
warranted throughout the year for promotions or other changes in
the scope or breadth of an executive’s role or
responsibilities.
Annual
Bonus
Our compensation program includes eligibility for an annual
performance-based cash bonus in the case of all executives and
certain senior, non-executive employees. The amount of the cash
bonus depends on the level of achievement of the stated
corporate and individual performance goals, with a target bonus
generally set as a percentage of base salary. Currently, all
executives, other than our Chief Executive Officer, and certain
senior non-executive employees are eligible for annual
performance-based cash bonuses in amounts targeted at 50% of
their base salaries for our executive officers and 10%-30% of
their base salaries for other executives, as set forth in their
employment offer letters. In its discretion, the compensation
committee may, however, award bonus payments to our executives
above or below the amounts specified in their respective offer
letters. We anticipate that the bonuses for our executive
officers will be included in the employment agreements to be
entered into in connection with this offering.
We expect that the compensation committee will implement an
expanded cash bonus program in connection with the completion of
this offering. In addition, we anticipate that our
executives’ cash bonus awards for 2008 will be established
in the second or third quarter of 2009 and will be based on
performance metrics to be determined by our board or the
compensation committee.
Long-Term
Incentive Program
We believe that long-term performance is achieved through equity
ownership through long-term participation by our executive
officers in equity-based awards. In addition, because we have
limited cash resources, compensating executives with equity
provides us the opportunity to attract and retain executives and
align their interests with ours while allowing us to utilize our
limited cash for other expenses and the development and growth
of our company. Our equity compensation plans allow for the
grant to executive officers of stock options, restricted stock,
and other equity-based awards. We typically make an initial
equity award of stock options to new employees and annual equity
grants as part of our overall compensation program. Option
grants are currently approved by the compensation committee and
our board and after this offering will be approved by the
compensation committee. Annual grants of options to all of our
employees will also be approved by our compensation committee.
After this offering, we expect that all equity awards to our
executive officers will be approved by the compensation
committee or our board of directors.
Stock option awards. In October 2002, we
adopted our 2002 Stock Plan. Under the plan, executives who join
us are awarded stock option grants. The plan authorized the
issuance of an aggregate of 350,000 shares of common stock
pursuant to awards or upon the exercise of options or other
rights. The plan is administered by our board of directors, or
at its election, a committee appointed by the board of
directors. These grants have an exercise price equal to the fair
market value of our common stock on the grant date and a vesting
schedule of generally zero to four years. Options may be granted
for a term not to exceed ten years from the date of grant and
are subject to exercisability provisions as determined by the
board of directors in its sole discretion. In certain instances,
a portion of the grant may vest at the time of grant. The amount
of the stock option award is determined based on the
executive’s position with us and analysis of the
competitive practices of the companies similar in size to us
represented in the compensation data that we review. The stock
option awards are calculated to have a total face value
(calculated by multiplying the number of shares subject to the
option by the exercise price thereof) equal to a percentage of
the executive’s base salary, and are intended to provide
the executive with incentive to build value in the organization
over an extended period of time. The amount of the stock option
award is also reviewed in light of the executive’s base
salary and other compensation to ensure that the
executive’s total compensation is in line with our overall
compensation philosophy. Typically, we grant our executives
stock option awards with a total face value ranging from one to
four times the executive’s base salary. We may grant
options that are tied to specific performance metrics negotiated
with our executives.
Restricted stock awards. We may make grants of
restricted stock to executive officers and certain high ranking
non-executive employees to provide additional long-term
incentive to build stockholder value. Restricted stock awards
are made in anticipation of contributions that will create value
in the Company and are subject to a lapsing repurchase right by
the Company over a period of time. Because the shares have a
defined value at the time the restricted stock grants are made,
restricted stock grants are often perceived as having more
immediate value than stock options, which have a less calculable
value when granted. However, we generally grant fewer shares of
restricted stock than the number of stock options we would grant
for a similar purpose. We may withhold from each holder the
number of shares of common stock necessary in order to satisfy
our statutory minimum tax withholding obligations with respect
to the vesting of these awards. We may grant restricted stock
that is tied to specific performance metrics negotiated with our
executives.
Annual stock option awards. Our practice is to
make annual stock option awards as part of our overall
performance management program. The compensation committee
believes that stock options provide management with a strong
link to long-term corporate performance and the creation of
stockholder value. Also, such awards allow us to compensate
management without utilizing our limited cash. We intend that
the annual aggregate value of these awards will be set near
competitive median levels for companies represented in the
compensation data we review. As is the case when the amounts of
base salary and initial equity awards are determined, a review
of all components of the executive’s compensation is
conducted when determining annual equity awards to ensure that
an executive’s total compensation conforms to our overall
philosophy and objectives. A pool of options is reserved for
executives and non-officers based on setting a target grant
level for each employee category, with the higher ranked
employees being eligible for a higher target grant.
In addition, in connection with this offering, our board of
directors adopted a new equity benefit plan as described under
“2009 Equity Incentive Plan” pursuant to which a total
of 1,000,000 shares of our common stock will be authorized for
issuance, pending stockholder approval. The compensation
committee of our board of directors, or any other committee
designated by the board of directors to administer the plan,
will determine, subject to the employment agreements, any future
equity awards that each named executive officer will be granted
pursuant to the 2009 Equity Incentive Plan. Shares subject to
awards that expire or are cancelled or forfeited, or that are
repurchased by us pursuant to the terms of the agreements, will
again become available for issuance under the plan.
We maintain broad-based benefits and perquisites that are
provided to all employees, including health insurance, life and
disability insurance, dental insurance, and a 401(k) plan. In
particular circumstances, we may utilize cash signing bonuses
when certain executives and senior non-executives join us. Such
cash signing bonuses are typically repayable in full to the
company if the employee recipient voluntarily terminates
employment with us prior to the first anniversary of the date of
hire. Whether a signing bonus is paid and the amount thereof is
determined on a
case-by-case
basis under the specific hiring circumstances. For example, we
will consider paying signing bonuses to compensate for amounts
forfeited by an executive upon terminating prior employment, to
assist with relocation expenses,
and/or to
create additional incentive for an executive to join our company
in a position where there is high market demand.
Severance. Upon termination of employment,
most executive officers will be entitled to receive severance
payments under their anticipated employment agreements. In
determining whether to approve and set the terms of such
severance arrangements, the compensation committee recognizes
that executives, especially highly ranked executives, often face
challenges securing new employment following termination. We
expect severance for change of control or involuntary
termination without cause of executive officers will include one
year of base salary and 75% of the target bonus.
Acceleration of vesting of equity-based
awards. In the event of a change of control or
involuntary termination, most executives’ stock options
will be accelerated. We intend to provide for acceleration of
vesting of equity awards if an executive officer is terminated
without cause or upon a change of control.
Summary
Compensation Table
The following table sets forth compensation information for the
years ended December 31, 2007 and 2008 for our Chief
Executive Officer, our Chief Financial Officer and each of our
other three most highly compensated executive officers as of the
end of the last fiscal year.
Long-Term Compensation
Annual Compensation
Stock
Option
All Other
Name and Principal
Salary
Bonus
Awards
Awards
Compensation
Total
Position
Year
($)
($)
($)
($)(1)
($)
($)
Brian S. Appel, Chairman and Chief Executive Officer
2007
193,311
103,800
0
14,032
88,524
(5)
399,667
2008
240,000
0
0
447,403
88,524
(5)
775,927
Michael J. McLaughlin, Chief Financial
Officer(2)
2007
—
—
—
—
—
—
2008
69,205
0
0
0
0
69,205
James H. Freiss, Chief Operating Officer
2007
208,623
45,000
0
55,871
0
309,494
2008
210,000
5,000
0
217,943
0
432,943
Dan F. Decker, Executive Vice
President(3)
2007
—
—
—
—
—
—
2008
58,750
0
0
65,260
90,527
(3)
214,537
Joseph P. Synnott, Vice President of Project
Development(4)
2007
—
—
—
—
—
—
2008
42,000
0
0
0
0
42,000
(1)
The amounts in this column reflect
the amounts we recorded or intend to record under SFAS
No. 123(R) as stock-based compensation in our financial
statements for 2007 and 2008 in connection with options we
granted in 2007 and 2008 and in prior years, adjusted to
disregard the effects of any estimate of forfeitures related to
service-based vesting but assuming, instead, that the executive
will perform the requisite service for the award to vest in
full. The assumptions we used in
valuing options are described under
the caption “Stock-Based Compensation” in Note 1
to our consolidated financial statements included elsewhere in
this prospectus.
(2)
Mr. McLaughlin joined our
company in August 2008 as our Chief Financial Officer.
(3)
Mr. Decker became our
Executive Vice President in September 2008. Prior to that,
Mr. Decker was a consultant to our company and acted as our
Acting Chief Operating Officer. He received $77,250 in
consulting fees and $13,277 in reimbursement of travel expenses
in 2008.
(4)
Mr. Synnott joined our company
in August 2008 as our Vice President of Project Development.
(5)
The amount shown reflects amounts
paid by us in rent and auto expenses to a company that is
100% owned by Brian S. Appel.
Grants of
Plan-Based Awards
The following table lists grants of plan-based awards made to
our named executive officers in 2008.
All Other
Option
Exercise
Awards:
or Base
Number of
Price of
Grant Date
Securities
Option
Fair Value
Grant
Underlying
Awards
of Option
Name
Date
Options (#)
($/Sh)(1)
Awards ($)
Brian S. Appel
8/11/2008
31,500
30.54
962,010
Michael J. McLaughlin
—
0
—
—
James H. Freiss
8/11/2008
10,500
30.54
320,670
Dan F. Decker
8/11/2008
4,667
30.54
142,530
Joseph P. Synnott
—
0
—
—
(1)
The exercise price was equal to the
fair market value of our common stock. The fair market value of
our common stock was determined by our board of directors based
on the last arm’s length equity transaction price in
September 2006 of $34.29 per share, which the board determined
based on the status of our operations and business development,
and remained the fair market value of our common stock at the
time of the grant.
One third of Mr. Appel’s
option awards vests on each anniversary of the option grant date
for three years.
(2)
233 shares of Mr. Freiss’
option award of 350 shares expiring on December 31,2012 vested on December 31, 2002, and the remaining
417 shares vested on December 31, 2003. One third of
Mr. Freiss’ remaining option awards vests on each
anniversary of the option grant date for three years.
(3)
One third of Mr. Decker’s
option award vests on each anniversary of the option grant date
for three years.
Option Exercises
and Stock Vested
Option Awards
Number of
Shares
Value
Acquired on
Realized
Exercise
on Exercise
Name
(#)
($)
Brian S. Appel
0
0
Michael J. McLaughlin
0
0
James H. Freiss
0
0
Dan F. Decker
0
0
Joseph P. Synnott
0
0
Employment
Agreements
We will enter into an employment agreement with Mr. Brian
S. Appel, our Chief Executive Officer, prior to the completion
of this offering. Pursuant to the employment agreement,
Mr. Appel’s base salary will be $250,000 per year.
Mr. Appel will also be eligible to receive an annual
performance bonus of up to 100% of his annual salary based on
certain performance guidelines determined by our compensation
committee. Mr. Appel’s employment agreement will be
for an initial three-year term with automatic one-year renewals
thereafter. Mr. Appel’s employment agreement provides
financial protection in the event of certain reasons for
termination of employment and provides for severance payments in
the event of certain categories of termination. Severance for
change-in-control or involuntary termination without cause will
include one year of base salary, 75% of the target bonus and
acceleration of stock options.
We will enter into an employment agreement with Mr. Michael
J. McLaughlin, our Chief Financial Officer, prior to the
completion of this offering. Pursuant to the employment
agreement, Mr. McLaughlin’s base salary will be
$250,000 per year. Mr. McLaughlin will also be eligible to
receive an annual performance bonus of up to 50% of his annual
salary based on certain performance guidelines determined by our
compensation committee. Mr. McLaughlin’s employment
agreement will be for an initial three-year term with automatic
one-year renewals thereafter. Mr. McLaughlin’s
employment agreement provides financial protection in the event
of certain reasons for termination of employment and provides
for severance payments in the event of certain categories of
termination. Severance for change-in-control or involuntary
termination without cause will include one year of base salary,
75% of the target bonus and acceleration of stock options.
We will enter into an employment agreement with Mr. James
H. Freiss, our Chief Operating Officer, prior to the completion
of this offering. Pursuant to the employment agreement,
Mr. Freiss’s base salary will be $210,000 per year.
Mr. Freiss will also be eligible to receive an annual
performance bonus of up to 50% of his annual salary based on
certain performance guidelines determined by our compensation
committee. Mr. Freiss’s employment agreement will be
for an initial three-year term with automatic one-year renewals
thereafter. Mr. Freiss’s employment agreement provides
financial protection in the event of certain reasons for
termination of employment and provides for severance payments in
the event of certain categories of termination. Severance for
change-in-control or involuntary termination without cause will
include one year of base salary, 75% of the target bonus and
acceleration of stock options.
We entered into an employment agreement with Mr. Joseph P.
Synnott, our Vice President of Project Development, on August13, 2008. Pursuant to the employment agreement, Mr.
Synnott’s base salary is $10,000 per month for the first
three months and $12,000 per month thereafter. Mr. Synnott
is eligible to receive an annual performance bonus of up to
62.5% of his annual salary based on certain performance
guidelines. The employment agreement also granted Mr. Synnott,
on the date of completion of this offering but no later than the
270th day following the date of the employment agreement, an
option to purchase 7,000 shares of our common stock at a
purchase price equal to the fair market value on the date of
grant, as determined by our board of directors. The stock
options vest, in equal annual installments over a period of four
years from the date of the employment agreement.
Mr. Synnott’s employment agreement does not contain
any termination or change-in-control provisions.
2009 Equity
Incentive Plan
Our board of directors adopted our 2009 Equity Incentive Plan,
or the 2009 Plan, in connection with this offering. Pending
stockholder approval, the 2009 Plan became effective as of
January 14, 2009 and a total of 1,000,000 shares of
our common stock have been reserved for sale. The 2009 Plan
provides for grants of stock options, stock appreciation rights,
restricted stock and other stock-based awards. Directors,
officers and other employees of us and our subsidiaries, as well
as others performing consulting or advisory services for us,
will be eligible for grants under the 2009 Plan. The purpose of
the 2009 Plan is to provide incentives that will attract, retain
and motivate highly competent officers, directors, employees and
consultants by providing them with appropriate incentives and
rewards either through a proprietary interest in our long-term
success or compensation based on their performance in fulfilling
their personal responsibilities. The following is a summary of
the material terms of the 2009 Plan, but does not include all of
the provisions of the 2009 Plan. For further information about
the 2009 Plan, we refer you to the complete copy of the 2009
Plan, which we have filed as an exhibit to the registration
statement of which this prospectus is a part.
Administration. The 2009 Plan provides for its
administration by the compensation committee of our board of
directors or any committee designated by our board of directors
to administer the 2009 Plan. Among the committee’s powers
are to determine the form, amount and other terms and conditions
of awards, clarify, construe or resolve any ambiguity in any
provision of the 2009 Plan or any award agreement and adopt such
rules, forms, instruments and guidelines for
administering the 2009 Plan as it deems necessary or proper. All
actions, interpretations and determinations by the committee or
by our board of directors are final and binding.
Shares Available. The 2009 Plan makes
available an aggregate of 1,000,000 shares of our common
stock, subject to adjustments. In the event that any outstanding
award expires, is forfeited, cancelled or otherwise terminated
without consideration, shares of our common stock allocable to
such award, including the unexercised portion of such award,
shall again be available for the purposes of the 2009 Plan. If
any award is exercised by tendering shares of our common stock
to us, either as full or partial payment, in connection with the
exercise of such award under the 2009 Plan or to satisfy our
withholding obligation with respect to an award, only the number
of shares of our common stock issued net of such shares tendered
will be deemed delivered for purposes of determining the maximum
number of shares of our common stock then available for delivery
under the 2009 Plan.
Eligibility for Participation. Members of our
board of directors, as well as employees of, and consultants to,
us or any of our subsidiaries and affiliates are eligible to
participate in the 2009 Plan. The selection of participants is
within the sole discretion of the committee.
Types of Awards. The 2009 Plan provides for
the grant of stock options, stock appreciation rights, shares of
restricted stock, or “restricted stock,” and other
stock-based awards, collectively, the “awards.” The
committee will, with regard to each award, determine the terms
and conditions of the award, including the number of shares
subject to the award, the vesting terms of the award, and the
purchase price for the award. Awards may be made in assumption
of or in substitution for outstanding awards previously granted
by us or our affiliates, or a company acquired by us or with
which we combine.
Award Agreement. Awards granted under the 2009
Plan shall be evidenced by award agreements (which need not be
identical) that provide additional terms and conditions
associated with such awards, as determined by the committee in
its sole discretion; provided, however, that in the event of any
conflict between the provisions of the 2009 Plan and any such
award agreement, the provisions of the 2009 Plan shall prevail.
Options. An option granted under the 2009 Plan
will permit a participant to purchase from us a stated number of
shares at an option price established by the committee, subject
to the terms and conditions described in the 2009 Plan, and such
additional terms and conditions, as established by the
committee, in its sole discretion, that are consistent with the
provisions of the 2009 Plan. Options shall be designated as
either a nonqualified stock option or an incentive stock option,
provided that options granted to directors and consultants shall
be nonqualified stock options. An option granted as an incentive
stock option shall, to the extent it fails to qualify as an
incentive stock option, be treated as a nonqualified option.
None of us, including any of our affiliates or the committee,
shall be liable to any participant or to any other person if it
is determined that an option intended to be an incentive stock
option does not qualify as an incentive stock option. Each
option shall conform to the requirements of the 2009 Plan, and
may contain such other provisions as the committee shall deem
advisable.
The exercise price of an option granted under the 2009 Plan may
not be less than 100% of the fair market value of a share of our
common stock on the date of grant, provided the exercise price
of an incentive stock option granted to a person holding greater
than 10% of our voting power may not be less than 110% of such
fair market value on such date. The committee will determine the
term of each option at the time of grant in its discretion;
however, the term may not exceed ten years (or, in the case of
an incentive stock option granted to a ten percent stockholder,
five years).
Stock Appreciation Rights. A stock
appreciation right entitles the holder to receive, upon its
exercise, the excess of the fair market value of a specified
number of shares of our common stock on the date of exercise
over the grant price of the stock appreciation right. The
payment of the value may
be in the form of cash, shares of our common stock, other
property or any combination thereof, as the committee determines
in its sole discretion. Stock appreciation rights may be granted
alone or in tandem with any option at the same time such option
is granted (a “tandem SAR”). A tandem SAR is only
exercisable to the extent that the related option is exercisable
and expires no later than the expiration of the related option.
Upon the exercise of all or a portion of a tandem SAR, a
participant is required to forfeit the right to purchase an
equivalent portion of the related option (and vice versa).
Subject to the terms of the 2009 Plan and any applicable award
agreement, the grant price (which shall not be less than 100% of
the fair market value of a share of our common stock on the date
of grant), term, methods of exercise, methods of settlement, and
any other terms and conditions of any stock appreciation right
shall be determined by the committee. The committee may impose
such other conditions or restrictions on the exercise of any
stock appreciation right as it may deem appropriate.
Restricted Stock. The committee may, in its
discretion, grant awards of restricted stock. Each award
agreement evidencing a restricted stock grant shall specify the
period(s) of restriction, the number of shares of restricted
stock subject to the award, the performance, employment or other
conditions (including the termination of a participant’s
service whether due to death, disability or other cause) under
which the restricted Stock may be forfeited to the Company and
such other provisions as the Committee shall determine. The
committee may require that the stock certificates evidencing
such shares be held in custody or bear restrictive legends until
the restrictions thereon shall have lapsed. Unless otherwise
determined by the committee and set forth in the award
agreement, a participant holding restricted stock will not have
the right to vote and will not receive dividends with respect to
such restricted stock.
Other Stock-Based Awards. The committee, in
its sole discretion, may grant awards of shares of our common
stock and awards that are valued, in whole or in part, by
reference to, or are otherwise based on the fair market value
of, such shares (the “other stock-based awards”). Such
other stock-based awards shall be in such form, and dependent on
such conditions, as the committee shall determine, including,
without limitation, the right to receive one or more shares of
our common stock (or the equivalent cash value of such stock)
upon the completion of a specified period of service, the
occurrence of an event
and/or the
attainment of performance objectives. Subject to the provisions
of the 2009 Plan, the committee shall determine to whom and when
other stock-based awards will be made, the number of shares of
our common stock to be awarded under (or otherwise related to)
such other stock-based awards, whether such other stock-based
awards shall be settled in cash, shares of our common stock or a
combination of cash and such shares, and all other terms and
conditions of such awards.
Transferability. Unless otherwise determined
by the committee, an award shall not be transferable or
assignable by a participant except in the event of his death
(subject to the applicable laws of descent and distribution) and
any such purported assignment, alienation, pledge, attachment,
sale, transfer or encumbrance shall be void and unenforceable
against us or any of our subsidiaries or affiliates. Any
permitted transfer of the awards to heirs or legatees of a
participant shall not be effective to bind us unless the
committee has been furnished with written notice thereof and a
copy of such evidence as the committee may deem necessary to
establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the
2009 Plan.
Stockholder Rights. Except as otherwise
provided in the applicable award agreement, a participant has no
rights as a stockholder with respect to shares of our common
stock covered by any award until the participant becomes the
record holder of such shares.
Adjustment of Awards. In the event of any
corporate event or transaction such as a merger, consolidation,
reorganization, recapitalization, separation, stock dividend,
stock split, reverse stock split, split up, spin-off,
combination of shares of our common stock, exchange of shares of
our common stock, dividend in kind, extraordinary cash dividend,
or other like change in capital structure (other than normal
cash dividends) to our stockholders, or any similar corporate
event or transaction,
the committee, to prevent dilution or enlargement of
participants’ rights under the 2009 Plan, shall substitute
or adjust, in its sole discretion, the number and kind of shares
that may be issued under the 2009 Plan or under particular forms
of awards, the number and kind of shares subject to outstanding
awards, the option price, grant price or purchase price
applicable to outstanding awards, the annual award limits,
and/or other
value determinations applicable to the 2009 Plan or outstanding
awards.
Upon the occurrence of a
change-in-control,
unless otherwise specifically prohibited under applicable laws
or by the rules and regulations of any governing governmental
agencies or national securities exchanges, or unless the
committee shall determine otherwise in the award agreement, the
committee is authorized (but not obligated) to make adjustments
in the terms and conditions of outstanding awards, including
without limitation the following (or any combination thereof):
(i) continuation or assumption of such outstanding awards
under the 2009 Plan by us (if it is the surviving company or
corporation) or by the surviving company or corporation or its
parent; (ii) substitution by the surviving company or
corporation or its parent of awards with substantially the same
terms for such outstanding awards; (iii) accelerated
exercisability, vesting
and/or lapse
of restrictions under all then outstanding awards immediately
prior to the occurrence of such event; (iv) upon written
notice, provide that any outstanding awards must be exercised,
to the extent then exercisable, within fifteen days immediately
prior to the scheduled consummation of the event, or such other
period as determined by the committee (in either case contingent
upon the consummation of the event), and at the end of such
period, such awards shall terminate to the extent not so
exercised within the relevant period; and (v) cancellation
of all or any portion of outstanding awards for fair value (as
determined in the sole discretion of the committee) which, in
the case of options and stock appreciation rights, may equal the
excess, if any, of the value of the consideration to be paid in
the change of control transaction to holders of the same number
of shares subject to such options or stock appreciation rights
(or, if no such consideration is paid, fair market value of the
shares subject to such outstanding awards or portion thereof
being canceled) over the aggregate option price or grant price,
as applicable, with respect to such awards or portion thereof
being canceled.
Amendment and Termination. Our board of
directors may amend, alter, suspend, discontinue, or terminate
the 2009 Plan or any portion thereof or any award (or award
agreement) thereunder at any time; provided that no such
amendment, alteration, suspension, discontinuation or
termination shall be made (i) without stockholder approval
if such approval is necessary to comply with any tax or
regulatory requirement applicable to the 2009 Plan and
(ii) without the consent of the participant, if such action
would materially diminish any of the rights of any participant
under any award theretofore granted to such participant under
the 2009 Plan; provided, however, the committee may amend the
2009 Plan, any award or any award agreement in such manner as it
deems necessary to comply with applicable laws.
Compliance with Code Section 409A. To the
extent that the 2009 Plan
and/or
awards are subject to Section 409A of the
U.S. Internal Revenue Code, or the Code, the committee may,
in its sole discretion and without a participant’s prior
consent, amend the 2009 Plan
and/or
awards, adopt policies and procedures, or take any other actions
(including amendments, policies, procedures and actions with
retroactive effect) as are necessary or appropriate to
(a) exempt the 2009 Plan
and/or any
award from the application of Section 409A of the Code,
(b) preserve the intended tax treatment of any such award,
or (c) comply with the requirements of Section 409A of
the Code, Department of Treasury regulations and other
interpretive guidance issued thereunder, including without
limitation any such regulations or other guidance that may be
issued after the date of the grant. This plan shall be
interpreted at all times in such a manner that the terms and
provisions of the 2009 Plan and awards are exempt from or comply
with Section 409A Guidance.
Effective Date. The 2009 Plan will be
effective as of January 14, 2009, pending stockholder
approval.
We pay our independent directors $5,000 per quarter for service
on our board of directors and $2,500 per quarter for service as
chairperson of a committee of the board of directors. We
reimburse our independent directors for their expenses incurred
in connection with attending board and committee meetings.
The following table sets forth compensation information for the
year ended December 31, 2008 for our directors.
Change in
Fees
Pension Value
Earned or
Non-Equity
and Nonqualified
Paid in
Stock
Option
Incentive Plan
Deferred
All Other
Cash
Awards
Awards
Compensation
Compensation
Compensation
Total
Name
($)(1)
($)
($)(2)
($)
Earnings
($)
($)
David C. Carroll
—
16,310
—
—
—
16,310
Jerome Finkelstein
—
48,930
—
—
—
48,930
David M. Katz
—
40,775
—
—
—
40,775
Saul B. Katz
—
65,240
—
—
—
65,240
Michael D. Lundin
32,500
(3)
—
32,620
—
—
—
65,120
Ira B. Silver
—
81,550
—
—
—
81,550
Michael D. Walter
2,500
(4)
—
37,513
—
—
—
40,013
Suzanne Woolsey, PhD
15,000
(5)
—
32,620
—
—
—
47,620
(1)
This column represents the amount
of cash compensation earned in 2008 for service on our board of
directors and on committees of the board of directors.
Independent directors were paid a quarterly cash fee of $5,000
for service on our board of directors, and $2,500 for serving as
chairperson of a committee of the board of directors.
(2)
This column represents the dollar
amount recognized for financial statement reporting purposes for
the fair value of stock options granted and vested to the
directors in 2008. The fair value, a non-cash expense, was
estimated using the Black-Scholes option-pricing method in
accordance with SFAS 123(R).
(3)
Mr. Lundin was paid $20,000
for service on our board of directors, $10,000 for serving as
chair of the Executive Committee and $2,500 for serving as chair
on the Nominating and Corporate Governance Committee during 2008.
(4)
Mr. Walter was paid $2,500 for
serving as chair of the Compensation Committee during 2008.
(5)
Dr. Woolsey was paid $10,000
for service on our board of directors and $5,000 for serving as
chair of the Audit Committee during 2008.
Indemnification
of Officers and Directors
Our amended and restated certificate of incorporation and bylaws
to be in place after this offering will provide that we will
indemnify our directors and officers to the fullest extent
permitted by the Delaware General Corporation Law. After this
offering, we intend to have in place directors’ and
officers’ liability insurance that insures such persons
against the costs of defense, settlement or payment of a
judgment under certain circumstances.
In addition, our amended and restated certificate of
incorporation after this offering will provide that our
directors will not be liable for monetary damages for breach of
fiduciary duty, except for liability relating to any breach of
the director’s duty of loyalty, acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, violations under Section 174 of the
Delaware General Corporation Law or any transaction from which
the director derived an improper personal benefit.
In addition, prior to the completion of this offering, we will
enter into indemnification agreements with each of our executive
officers and directors. The indemnification agreements will
provide the executive officers and directors with contractual
rights to indemnification, expense
advancement and reimbursement, to the fullest extend permitted
under the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, or the Securities Act, may
be permitted to directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
There is no pending litigation or proceeding naming any of our
directors or officers to which indemnification is being sought,
and we are not aware of any pending or threatened litigation
that may result in claims for indemnification by any director or
officer.
The following table and accompanying footnotes show information
regarding the beneficial ownership of our common stock before
and after this offering by:
•
each person or group who is known by us to own beneficially more
than 5% of our common stock;
•
each member of our board of directors and each of our named
executive officers; and
•
all members of our board of directors and our executive officers
as a group.
Beneficial ownership of shares is determined under rules of the
Securities and Exchange Commission and generally includes any
shares over which a person exercises sole or shared voting or
investment power. As of the date of this prospectus, there would
have been 9,184,602 shares of common stock outstanding held
by 143 holders of record, after giving effect to a seven
for one stock split and a subsequent three for one reverse stock
split of our common stock. After giving effect to this offering
and the automatic conversion of all outstanding shares of
preferred stock into 455,189 shares of common stock in
connection with this offering, there would have been
12,389,791 shares of common stock outstanding. The table
also includes the number of shares underlying options and
warrants that will be exercisable within 60 days of the
date of this offering.
Except as otherwise indicated, the persons named in the table
below have sole voting and investment power with respect to all
shares of capital stock held by them. Unless otherwise
indicated, the address for each holder listed below is
c/o Changing
World Technologies, Inc., 460 Hempstead Avenue, West Hempstead,
New York11552.
All board of director members and named executive officers as a
group (13 persons)
4,582,311
44.86
4,628,978
33.51
33.54
*
Less than 1%.
(1)
The address for AB-CWT, LLC is 460
Hempstead Avenue, West Hempstead, NY. The managing member of
AB-CWT, LLC who has dispositive voting and investment control is
Mr. Brian S. Appel. Each of the foregoing individuals
disclaims beneficial ownership of the securities held by AB-CWT,
LLC.
(2)
The Apex Capital related parties
include Branagh Revocable Trust, Colen Trust, DTD 06/20/01,
J&L Katz Family Limited Partnership, Katz Family Trust,
Permal U.S. Opportunities Limited, Pollat, Evans &
Co., Seth Teich, Zaxis Equity Neutral, LP, Zaxis Institutional
Partners, LP, Zaxis Offshore Limited, Zaxis Partners, LP. The
address for each of Apex Capital related parties is 25 Orinda
Way, Suite 300, Orinda, CA94563. The authorized investment
advisor who exercises dispositive voting and investment control
for each of Branagh Revocable Trust, Permal U.S. Opportunities
Limited, Pollat, Evans & Co., Zaxis Institutional
Offshore and Zaxis Offshore Limited is Sanford J. Colen.
Mr. Colen disclaims beneficial
ownership of the securities held by Branagh Revocable Trust,
Permal U.S. Opportunities Limited, Pollat, Evans &
Co., Zaxis Institutional Offshore and Zaxis Offshore Limited.
The trustee of Colen Trust, DTC 06/20/01 who exercises
dispositive voting and investment control is Sanford J. Colen.
Mr. Colen disclaims beneficial ownership of the securities
held by Colen Trust, DTC 06/20/01. The authorized investment
advisor of J&L Katz Family Limited Partnership who
exercises dispositive voting and investment control is Daniel
Katz. Mr. Daniel Katz disclaims beneficial ownership of the
securities held by J&L Katz Family Limited Partnership. The
trustee of Katz Family Trust who exercises dispositive voting
and investment control is Daniel Katz. Mr. Daniel Katz
disclaims beneficial ownership of the securities held by Katz
Family Trust. The general partner who exercise dispositive
voting and investment control of Zaxis Equity Neutral, LP, Zaxis
Institutional Partners, LP and Zaxis Partners, LP is Sanford J.
Colen. Mr. Colen disclaims beneficial ownership of the
securities held by Zaxis Equity Neutral, LP, Zaxis Institutional
Partners, LP and Zaxis Partners, LP.
(3)
The address for ConAgra Foods, Inc.
is One ConAgra Drive, Omaha, NE. The number of shares
beneficially owned by ConAgra Foods, Inc. immediately prior to
this offering also reflects its Common Stock Purchase Warrant
No. W-1,
dated as of July 15, 2005, to purchase 327,488 shares
of common stock. The individuals that exercise shared
dispositive voting and investment control for ConAgra Foods,
Inc. are its directors, Mogens C. Bay, Stephen G. Butler, Steven
F. Goldstone, W.G. Jurgensen, Ruth Ann Marshall, Gary M. Rodkin,
Andrew J. Schindler and Kenneth E. Stinson. Each of the
foregoing individuals disclaims beneficial ownership of the
securities held by ConAgra Foods, Inc.
(4)
The Finkelstein related parties
include CWT Venture Group I LLC., CWT Venture Group II
LLC., Eizel 33, LLC, Alexa M. Entel 1999 Trust, Deborah Entel
2006 Family Trust, Jacob Entel 1999 Trust, Benjamin Finkelstein
1999 Trust, Caroline S. Finkelstein 1999 Trust, Harold
Finkelstein, Harold and Marilyn Finkelstein Trust FBO
Daniel Rosenthal, Jerome Finkelstein, Malcolm Finkelstein 1999
Trust, Michael Finkelstein 2006 Family Trust, MED Partners,
Emily J. Silver Non-GST 2007 Trust, Eve Silver 2006 Family
Trust, Eve Silver Spousal Lifetime Access Trust, Eve Silver 2007
Grantor Retained Annuity Trust, Silver Family Associates, LLC,
Ira B. Silver, Lila R. Silver GST 2007 Trust, Lila R. Silver
Non-GST 2007 Trust, Zachary I. Silver GST 2007 Trust, Zachary I.
Silver Non-GST 2007 Trust. The address for Finkelstein related
parties is
c/o Max
Finkelstein, Inc.
28-40 31st
St., Astoria, New York, 11102. The
number of shares beneficially owned by the Finkelstein related
parties immediately prior to this offering also reflects
(i) Harold Finkelstein’s Common Stock Purchase Warrant
No. W-5,
dated as of July 23, 2007, to purchase 7,394 shares of
common stock, (ii) Harold Finkelstein’s Common Stock
Purchase Warrant
No. W-7,
dated as of December 30, 2008, to purchase
24,354 shares of common stock, (iii) Jerome
Finkelstein’s Common Stock Purchase Warrant
No. W-8,
dated as of December 30, 2008, to purchase
24,354 shares of common stock and (iv) Eizel 33,
LLC’s Common Stock Purchase Warrant
No. W-9,
dated as of December 30, 2008, to purchase
23,333 shares of common stock. The number of shares
beneficially owned by the Finkelstein related parties
immediately after this offering also reflects the automatic
conversion of the outstanding shares of preferred stock owned by
certain Finkelstein related parties into 455,189 shares of
common stock in connection with this offering. The managing
members of CWT Venture Group I LLC who exercise dispositive
voting and investment control are Jerome Finkelstein, Estelle
Finkelstein, Michael B. Finkelstein, Eve Silver, Ira B. Silver,
Deborah Entel and Richard Entel. Each of the foregoing
individuals disclaims beneficial ownership of the securities
held by CWT Venture Group I LLC. The managing members of Eizel
33, LLL who exercise dispositive voting and investment control
are Ira B. Silver and Eve Silver. Each of the foregoing
individuals disclaims beneficial ownership of the securities
held by Eizel 33, LLC. The managing members of Silver Family
Associates, LLC who exercise dispositive voting and investment
control are Ira B. Silver and Eve Silver. Each of the foregoing
individuals disclaims beneficial ownership of the securities
held by Silver Family Associates, LLC. The managing members of
CWT Venture Group II LLC who exercises dispositive voting
and investment control are Harold Finkelstein, Ronald
Finkelstein, Ellen Paticoff and Paula Rosenthal. Each of the
foregoing individuals disclaims beneficial ownership of the
securities held by CWT Venture Group II LLC. The trustee of
Alexa M. Entel 1999 Trust, Jacob Entel 1999 Trust and Michael
Finkelstein 2006 Family Trust who exercises dispositive voting
and investment control is Deborah Entel. Ms. Entel
disclaims beneficial ownership of the securities held by each of
the foregoing trusts. The trustee of Deborah Entel 2006 Family
Trust, Benjamin Finkelstein 1999 Trust, Caroline S. Finkelstein
1999 Trust, Malcolm Finkelstein 1999 Trust, Emily J. Silver GST
2007 Trust, Emily J. Silver Non-GST 2007 Trust, Eve Silver 2006
Family Trust, Eve Silver Spousal Lifetime Access Trust, Eve
Silver 2007 Grantor Retained Annuity Trust, Lila R. Silver GST
2007 Trust, Lila R. Silver Non-GST 2007 Trust, Zachary I. Silver
GST 2007 Trust and Zachary I. Silver Non-GST 2007 Trust who
exercises dispositive voting and investment control is Michael
B. Finkelstein. Mr. Michael Finkelstein disclaims
beneficial ownership of the securities held by each of the
foregoing trusts. The trustee of Harold and Marilyn Finkelstein
Trust FBO Daniel Rosenthal who exercises dispositive voting and
investment control is Paula Rosenthal. Ms. Rosenthal
disclaims beneficial ownership of the securities held by each of
the foregoing trusts. The managing partners of MED Partners who
exercise dispositive voting and investment control are Michael
B. Finkelstein, Eve Silver and Deborah Entel. MED Partners also
holds 3.90% of AB-CWT, LLC’s membership interests. Each of
the foregoing individuals disclaims beneficial ownership of the
securities held by MED Partners.
(5)
The address for Gas Technology
Institute is 1700 South Mount Prospect Road, Des Plaines,
Illinois60018. The number of shares beneficially owned by the
Gas Technology Institute immediately prior to this offering also
reflects Gas Technology Institute’s Common Stock Purchase
Warrant No.
W-11, dated
as of December 30, 2008, to purchase 8,750 shares of
common stock. The individuals that exercise shared dispositive
voting and investment control for Gas Technology Institute are
its directors, Randall L. Barnard, Robert W. Best, David C.
Carroll, Arthur Corbin, Charles D. Davidson, John Hofmeister,
Terry D. McCallister, Mary Jane McCartney, James T. McManus II,
Rebecca Ranich, David F. Smith, John W. Somerhalder II, Lee M.
Stewart, John M. Stinson III and Lori Traweek. Each of the
foregoing individuals disclaims beneficial ownership of the
securities held by Gas Technology Institute.
(6)
The address for Goldman,
Sachs & Co. is 85 Broad Street, New York, NY10004.
The number of shares beneficially owned by Goldman,
Sachs & Co. immediately prior to this offering
reflects its Common Stock Purchase Warrant
No. W-4,
dated as of July 23, 2007, to purchase 7,394 shares of
common stock. Goldman, Sachs & Co. is a direct and
indirect wholly-owned subsidiary of The Goldman Sachs Group,
Inc. The common stock of The Goldman Sachs Group, Inc. is
registered under the Securities Act of 1933, as amended, and
traded on the NYSE.
(7)
The Sterling related parties
include Saul Katz, Sterling Acquisitions LLC and Sterling
Acquisitions II, LLC. The address for Sterling related parties
is
c/o Sterling
Equities, 111 Great Neck Road, Suite 408, Great Neck, NewYork11021. The number of shares beneficially owned by Sterling
related parties immediately prior to this offering reflects
(i) Sterling Acquisitions LLC’s Common Stock Purchase
Warrant
No. W-6,
dated as of July 23, 2007, to purchase 13,867 shares
of common stock and (ii) Sterling Acquisitions LLC’s
Common Stock Purchase Warrant
No. W-10,
dated as of December 30, 2008, to purchase
35,875 shares of common stock. Sterling Acquisitions LLC
also holds 32.9% of AB-CWT, LLC’s membership interests. The
managing members of Sterling Acquisition LLC and Sterling
Acquisitions II, LLC who share dispositive voting and investment
control are Arthur Friedman, Saul B. Katz and David M. Katz.
Each of the foregoing individuals disclaims beneficial ownership
of the securities held by Sterling Acquisitions LLC and Sterling
Acquisitions II, LLC.
(8)
The Stonehill Capital related
parties include Stonehill Institutional Partners, LP and
Stonehill Offshore Partners Limited. The address for Stonehill
Capital related parties is
c/o Stonehill
Capital Management LLC, 885 Third Avenue, 30th Floor. The number
of shares beneficially owned by Stonehill Capital related
parties immediately prior to this offering reflects Stonehill
Offshore Partners Limited’s Common Stock Purchase Warrant
No. W-2,
dated as of July 23, 2007, to purchase
231,095.66 shares of common stock and Stonehill
Institutional Partners, LP’s Common Stock Purchase Warrant
No. W-3,
dated as of July 23, 2007, to purchase 231,098 shares
of common stock. Stonehill Capital Management LLC is the
investment adviser to Stonehill Institutional Partners, LP and
Stonehill Offshore Partners Limited. John Motulsky,
Christopher Wilson and Wayne
Teetsel are the managing members of Stonehill Capital Management
LLC. Each of the foregoing individuals disclaims beneficial
ownership of the securities held by Stonehill Institutional
Partners, LP and Stonehill Offshore Partners Limited.
(9)
The address for each of Brian S.
Appel, Michael J. McLaughlin, James H. Freiss, Dan F. Decker,
Joseph P. Synnott, David C. Carroll, Jerome Finkelstein, David
M. Katz, Saul B. Katz, Michael D. Lundin, Ira B. Silver, Michael
D. Walter and Suzanne Woolsey PhD is
c/o Changing
World Technologies, Inc. 460 Hempstead Avenue, West Hempstead,
New York11552.
(10)
Mr. Appel is a managing member
of AB-CWT, LLC and, therefore, may be deemed to beneficially own
the 1,517,185.15 shares of common stock held of record by
AB-CWT, LLC. Mr. Appel disclaims beneficial ownership of
such common stock (except to the extent of any pecuniary
interest therein) as a result of his membership on the board of
manager of AB-CWT, LLC. The number of shares beneficially owned
by Mr. Appel immediately prior to this offering also
includes his vested option to purchase 33,483.33 shares of
common stock.
(11)
The number of shares beneficially
owned by Mr. Freiss immediately prior to this offering also
includes his vested option to purchase 19,444.33 shares of
common stock.
(12)
The number of shares beneficially
owned by Mr. Decker immediately prior to this offering
reflects his vested option to purchase 4,666.67 shares of
common stock.
(13)
Mr. Carroll is a director of
Gas Technology Institute and, therefore, may be deemed to
beneficially own the 633,240.22 shares of common stock held
of record by Gas Technology Institute. Mr. Carroll
disclaims beneficial ownership of such common stock as a result
of his membership on the board of directors of Gas Technology
Institute. The number of shares beneficially owned by
Mr. Carroll immediately prior to this offering also
includes his vested option to purchase 1,166.67 shares of
common stock.
(14)
The number of shares beneficially
owned by Mr. Jerome Finkelstein immediately prior to this
offering includes his vested option to purchase
4,375 shares of common stock. Mr. Jerome Finkelstein
is a managing member of CWT Venture Group I LLC and, therefore,
may be deemed to beneficially own the 230,102 shares of
common stock held of record by CWT Venture Group I LLC.
Mr. Jerome Finkelstein disclaims beneficial ownership of
such common stock (except to the extent of any pecuniary
interest therein) as a result of his membership on the board of
managers of CWT Venture Group I LLC. Mr. Jerome Finkelstein
also holds 7.14% of AB-CWT, LLC’s membership interests.
Mr. Jerome Finkelstein disclaims any beneficial ownership
of our common stock as a result of his membership interest in
AB-CWT, LLC.
(15)
Mr. David M. Katz is the
Executive Vice President of Sterling Equities and a managing
member of Sterling Acquisition LLC and Sterling Acquisitions II,
LLC and, therefore, may be deemed to beneficially own the
862,484 shares of common stock held of record by Sterling
related parties. Mr. David M. Katz disclaims beneficial
ownership of such common stock as a result of his position with
Sterling Equities. The number of shares beneficially owned by
Mr. David M. Katz immediately prior to this offering
includes his vested option to purchase 3,791 shares of
common stock.
(16)
Mr. Saul B. Katz is President
of Sterling Equities and a managing member of Sterling
Acquisition LLC and Sterling Acquisitions II, LLC and,
therefore, may be deemed to beneficially own the
862,484 shares of common stock held of record by Sterling
related parties. Mr. Saul B. Katz disclaims beneficial
ownership of such common stock as a result of his position with
Sterling Equities. The number of shares beneficially owned by
Mr. Saul B. Katz immediately prior to this offering
includes his vested option to purchase 5,541.67 shares of
common stock.
(17)
The number of shares beneficially
owned by Mr. Lundin immediately prior to this offering
reflects his vested option to purchase 2,333 shares of
common stock.
(18)
Mr. Silver is a managing
member of CWT Venture Group I LLC, Eizel 33, LLC and Silver
Family Associates, LLC and, therefore, may be deemed to
beneficially own the 899,866.72 shares of common stock held
of record by CWT Venture Group I LLC, Eizel 33, LLC and Silver
Family Associates, LLC. The number of shares beneficially owned
by Mr. Silver immediately after this offering also reflects
the automatic conversion of the outstanding shares of preferred
stock owned by Eizel 33, LLC into 46,667 shares of
common stock in connection with this offering that
Mr. Silver may be deemed to beneficially own.
Mr. Silver disclaims beneficial ownership of such common
stock (except to the extent of any pecuniary interest therein)
as a result of his membership on the board of managers of CWT
Venture Group I LLC, Eizel 33, LLC and Silver Family Associates,
LLC. The number of shares beneficially owned by Mr. Silver
immediately prior to this offering also includes his vested
option to purchase 6,708 shares of common stock.
(19)
The number of shares beneficially
owned by Mr. Walter immediately prior to this offering
reflects his vested option to purchase 3,500 shares of
common stock.
(20)
The number of shares beneficially
owned by Dr. Woolsey immediately prior to this offering
reflects her vested option to purchase 2,333.33 shares of
common stock. Dr. Woolsey’s husband, James Woolsey,
owns vested options to purchase 2,216.67 shares of common
stock, and the R. James Woolsey Trust, a trust held by
Mr. Woolsey, holds approximately 3.89% of AB-CWT,
LLC’s membership interests.
In December 2008, we completed a secured debt and warrant
financing for aggregate net proceeds of $2.0 million
whereby we issued promissory notes and warrants to certain
existing stockholders. We issued (i) a warrant to purchase
35,875 shares of our common stock and a promissory note in the
principal amount of $615,000 to Sterling Acquisitions, LLC, (ii)
a warrant to purchase 24,354.17 shares of our common stock
and a promissory note in the principal amount of $417,500 to
Jerome Finkelstein, (iii) a warrant to purchase
24,354.17 shares of our common stock and a promissory note
in the principal amount of $417,500 to Harold Finkelstein, (iv)
a warrant to purchase 8,750 shares of our common stock and
a promissory note in the principal amount of $150,000 to Gas
Technology Institute and (v) a warrant to purchase
23,333.33 shares of our common stock and a promissory note
in the principal amount of $400,000 to Eizel 33, LLC. Each of
the foregoing promissory notes is fully secured by all of our
assets, has an interest rate of 18% per annum and will mature on
the earlier to occur of March 31, 2009 or the consummation
of this offering. Each of the foregoing warrants has an exercise
price of $30.54 per share, is exercisable beginning January 2010
and expires in December 2013. We determined the fair value of
the warrants, $653,333, using the Black-Sholes option-pricing
model with the following assumptions: a fair market value of
common stock of $11.00 per share, exercise price of $30.54 per
share, risk free interest rate of 1.47%, volatility of 88.13%,
dividend yield of $0 and life of five years. The promissory
notes will be recorded at their relative fair value of
$1.5 million and the warrants will be recorded as
additional paid in capital at their relative fair value of
$492,462.
During the periods ended September 30, 2008 and
December 31, 2007, we paid rent and auto expenses totaling
approximately $66,000 and $89,000, respectively, to a company
that is 100% owned by Brian S. Appel, our Chairman and Chief
Executive Officer. Rent is for our corporate headquarters in
West Hempstead, New York and is due on a month-to-month basis.
During the nine months ended September 30, 2008 and the
period ended December 31, 2007, we paid approximately
$73,000 and $129,000, respectively, to AB-CWT in license fees
pursuant to our exclusive license agreement with AB-CWT for the
use of TCP. AB-CWT is a Delaware limited liability company whose
members include Brian S. Appel, our Chief Executive Officer and
director, Jerome Finkelstein, one of our directors, an entity
controlled by Sterling Equities, one of our principal
stockholders, and a trust held by the husband of Suzanne
Woolsey, one or our directors. Mr. Appel holds
approximately 39.7%, Sterling Acquisitions LLC, an entity
controlled by Sterling Equities, holds approximately 32.9%,
Mr. Finkelstein holds approximately 7.1% and the R. James
Woolsey Trust, the trust held by the husband of Suzanne Woolsey,
holds approximately 3.9% of AB-CWT’s membership interests.
For further discussion of the license agreement, see
“Business — Intellectual Property Rights.”
During the year ended December 31, 2007, we received grants
from Society for Energy and Environmental Research, or SEER, a
not-for-profit corporation funded by the Department of Energy,
in the amount of approximately $400,000. Further, we provided
administrative and bookkeeping services in the amount of $30,000
to SEER which assisted us in obtaining several government
grants. Although we provided administrative and bookkeeping
services to SEER in the past, these services were not provided
in exchange for SEER’s assistance in obtaining government
grants. One of the directors of SEER is the husband of Suzanne
Woolsey, one of our directors, and another director of SEER is
the son of Jerome Finkelstein, one of our directors.
Policies for
Approval of Related Person Transactions
In connection with this offering, we will adopt a written policy
relating to the procedure for approval of related person
transactions where the amount exceeds $120,000 in a calendar
year. Our audit committee will review all relationships and
related person transactions in which we and (i) our
directors, director nominees, executive officers or their
immediate family members or (ii) any 5% beneficial owner of
our common stock participate to determine whether such persons
have a direct or indirect material interest. Our audit committee
will be primarily responsible for the development and
implementation of processes and controls to obtain information
from our directors and executive officers with respect to
related party transactions and for determining, based on the
facts and circumstances, whether we or a related person have a
direct or indirect material interest in the transaction.
As set forth in the related party policy, in the course of its
review and approval or ratification of a related party
transaction, the committee will consider relevant factors and
circumstances, including:
•
the relationship of the related person to us;
•
whether the transaction is on terms comparable to an arm’s
length transaction or to terms we generally offer non-related
persons;
•
whether the transaction is in the ordinary course of
business; and
•
the effect of the transaction on our business operations.
Any member of the audit committee who is a related person with
respect to a transaction under review will not be counted
towards approval or ratification of the transaction. The
committee may submit consideration of the related party
transaction to our board.
Our certificate of incorporation will be amended and restated
prior to the consummation of this offering. The following
description of the material terms of our capital stock contained
in the amended and restated certificate of incorporation is only
a summary. You should read it together with our amended and
restated certificate of incorporation and our amended and
restated bylaws, which are included as exhibits to the
registration statement of which this prospectus is a part. The
descriptions of the common stock and preferred stock reflect
changes to our capital structure that will occur immediately
prior to the closing of this offering.
General
Upon the completion of this offering, our authorized capital
stock will consist of 150,000,000 shares of common stock,
par value $0.01 per share, and 5,000,000 shares of
preferred stock, par value $0.01 per share, all of which shares
of preferred stock will be undesignated. Our board of directors
may establish the rights and preferences of the preferred stock
from time to time. As of January 1, 2009, after giving
effect to the automatic conversion of all outstanding shares of
preferred stock into common stock in connection with this
offering and assuming an initial public offering price of $10.00
per share, the midpoint of the price range set forth on the
cover of this prospectus, there would have been
12,389,791 shares of common stock issued and outstanding.
Common
Stock
Each holder of our common stock is entitled to one vote for each
share on all matters to be voted upon by the stockholders and
there are no cumulative rights. Subject to any preferential
rights of any outstanding preferred stock, holders of our common
stock will be entitled to receive ratably the dividends, if any,
as may be declared from time to time by the board of directors
out of funds legally available for that purpose. In the event of
our liquidation, dissolution or winding up, holders of our
common stock are entitled to share ratably in our assets
remaining after the payment of liabilities and any preferential
rights of any outstanding preferred stock.
Holders of our common stock will have no preemptive or
conversion rights or other subscription rights, and there will
be no redemption or sinking fund provisions applicable to the
common stock. All outstanding shares of our common stock will be
fully paid and non-assessable. The rights, preferences and
privileges of the holders of our common stock will be subject
to, and may be adversely affected by, the rights of the holders
of shares of any series of preferred stock which we may
designate and issue in the future.
As of September 30, 2008, there were 143 holders of
9,184,602 shares of our common stock.
Preferred
Stock
Under the terms of our amended and restated certificate of
incorporation, our board of directors will be authorized to
issue shares of preferred stock in one or more series without
stockholder approval. Our board of directors has the discretion
to determine the rights, preferences, privileges and
restrictions, including voting rights, dividend rights,
conversion rights, redemption privileges and liquidation
preferences, of each series of preferred stock.
The purpose of authorizing our board of directors to issue
preferred stock and determine its rights and preferences is to
eliminate delays associated with a stockholder vote on specific
issuances. The issuance of preferred stock, while providing
flexibility in connection with possible future acquisitions and
other corporate purposes, will affect, and may adversely affect,
the rights of holders of common stock. It is not possible to
state the actual effect of the issuance of any shares of
preferred stock on the rights of holders of common stock until
the board of directors determines the
specific rights attached to that preferred stock. The effects of
issuing preferred stock could include one or more of the
following:
•
restricting dividends on the common stock;
•
diluting the voting power of the common stock;
•
impairing the liquidation rights of the common stock; or
•
delaying or preventing changes in control or management of our
company.
We have no present plans to issue any shares of preferred stock.
Options
As of December 31, 2008, we had outstanding options to
purchase an aggregate of 137,956 shares of our common stock
at a weighted average exercise price of $30.83 per share.
Warrants
As of December 31, 2008, we had 11 outstanding warrants to
purchase an aggregate of 925,757 shares of our common stock
at an exercise price of $30.54 per share. One warrant expires on
July 21, 2010, five expire on July 23, 2012 and the
remaining five expire on December 30, 2013.
Anti-Takeover
Provisions
Provisions of Delaware law and our amended and restated
certificate of incorporation and amended and restated bylaws to
be in effect after this offering could make it more difficult to
acquire us by means of a tender offer, a proxy contest or
otherwise, or to remove incumbent officers and directors. We
expect these provisions to discourage coercive takeover
practices and inadequate takeover bids and to encourage persons
seeking to acquire control of us to first negotiate with our
board of directors. We believe that our potential ability to
negotiate with the proponent of an unfriendly or unsolicited
proposal to acquire or restructure us outweigh the disadvantages
of discouraging takeover or acquisition proposals because, among
other things, negotiation of these proposals could result in an
improvement of their terms.
Section 203
of Delaware Law
Upon consummation of this offering, our amended and restated
certificate of incorporation will provide that we have opted out
of the provisions of Section 203 of the Delaware General
Corporation Law, an anti-takeover law.
No Cumulative
Voting
The Delaware General Corporation Law provides that stockholders
are denied the right to cumulate votes in the election of
directors unless our certificate of incorporation provides
otherwise. Our amended and restated certificate of incorporation
will not provide for cumulative voting.
Voting
Agreement
We have entered into an amended and restated voting agreement
with various stockholders, including AB-CWT, ConAgra, CWT
Ventures Group II LLC, Eizel 33, LLC, GSFS Investments I
Corp, Zachary I. Silver 1999 Trust, Emily J. Silver 1999 Trust,
Lila R. Silver 1999 Trust, Malcolm Finkelstein 1999 Trust,
Benjamin Finkelstein 1999 Trust, Caroline Finkelstein 1999
Trust, Jacob Entel 1999 Trust, Alexa M. Entel 1999 Trust and Med
Partners. The voting agreement limits the number of directors on
our board of directors to nine members and permits GSFS
Investments I Corp. and ConAgra to each designate one member of
the board of directors. These directors may maintain their
position as a director on our board of directors as long as our
company remains a private company. The voting agreement will
terminate upon completion of this offering.
Under our amended and restated certificate of incorporation, a
director may be removed from office for cause by the affirmative
vote of a majority of the voting power of our then outstanding
capital stock or without cause by an affirmative vote of the
holders of a majority of the outstanding shares of capital stock
entitled to vote. In addition, any vacancy on our board of
directors, including a vacancy resulting from an enlargement of
our board of directors, may only be filled by vote of a majority
of our directors then in office. The limitations on the removal
of directors and filling of vacancies could make it more
difficult for a third party to acquire, or discourage a third
party from acquiring, control of us.
Action by Written
Consent
Our amended and restated certificate of incorporation will
provide that stockholder action may only be taken at an annual
or special meeting of the stockholders and cannot be taken by
written consent in lieu of a meeting.
Advance Notice
Requirements for Stockholder Proposals and Director
Nominations
In addition, our amended and restated bylaws will establish an
advance notice procedure for stockholder proposals to be brought
before an annual meeting of stockholders, including proposed
nominations of persons for election to the board of directors.
Stockholders at an annual meeting may only consider proposals or
nominations specified in the notice of meeting or brought before
the meeting by or at the direction of the board of directors or
by a stockholder of record on the record date for the meeting
who is entitled to vote at the meeting and who has delivered
timely written notice in proper form to our secretary of the
stockholder’s intention to bring such business before the
meeting. These provisions could have the effect of delaying
until the next stockholders’ meeting stockholder actions
that are favored by the holders of a majority of our outstanding
voting securities. These provisions may also discourage a third
party from making a tender offer for our common stock, because
even if it acquired a majority of our outstanding voting
securities, the third party would be able to take action as a
stockholder, such as electing new directors or approving a
merger, only at a duly called stockholders’ meeting, and
not by written consent.
Limitations on
Liability and Indemnification of Officers and
Directors
The Delaware General Corporation Law authorizes corporations to
limit or eliminate the personal liability of directors to
corporations and their stockholders for monetary damages for
breaches of directors’ fiduciary duties as directors. Our
amended and restated certificate of incorporation will include
provisions that indemnify, to the fullest extent allowable under
the Delaware General Corporation Law, the personal liability of
directors or officers for monetary damages for actions taken as
a director or officer of our company, or for serving at our
request as a director or officer or another position at another
corporation or enterprise, as the case may be. Our amended and
restated certificate of incorporation will also provide that we
must indemnify and advance reasonable expenses to our directors
and officers, subject to our receipt of an undertaking from the
indemnitee as may be required under the Delaware General
Corporation Law. We will also be expressly authorized to carry
directors’ and officers’ insurance to protect our
company, our directors, officers and certain employees from some
liabilities.
The limitation of liability and indemnification provisions in
our amended and restated certificate of incorporation may
discourage stockholders from bringing a lawsuit against
directors for breach of their fiduciary duty. These provisions
may also have the effect of reducing the likelihood of
derivative litigation against directors and officers, even
though such an action, if successful, might otherwise benefit us
and our stockholders. In addition, your investment may be
adversely affected to the extent that, in a class action or
direct suit, we pay the costs of settlement and damage awards
against directors and officers pursuant to these indemnification
provisions. There is currently no pending material litigation or
proceeding involving any of our directors, officers or employees
for which indemnification is sought.
Our authorized but unissued shares of common stock and preferred
stock will be available for future issuance without your
approval. We may use additional shares for a variety of
corporate purposes, including future public offerings to raise
additional capital, corporate acquisitions and employee benefit
plans. The existence of authorized but unissued shares of common
stock and preferred stock could render more difficult or
discourage an attempt to obtain control of us by means of a
proxy contest, tender offer, merger or otherwise.
Amendments to
Organizational Documents
The Delaware General Corporation Law generally provides that the
power to adopt, amend or repeal bylaws shall be in the
stockholders entitled to vote, provided, however, any
corporation may, in its certificate of incorporation, confer the
power to adopt, amend or repeal bylaws upon the directors. Our
amended and restated bylaws will provide that the directors
shall have power to adopt, amend or repeal bylaws. However,
bylaws adopted by our directors may be repealed or changed, and
new bylaws made, by the stockholders, and the stockholders may
prescribe that any bylaw made by them shall not be altered,
amended or repealed by our directors. The Delaware General
Corporation Law generally provides that the affirmative vote of
a majority of the shares entitled to vote on any matter is
required to amend a corporation’s certificate of
incorporation.
Registration
Rights
For a description of the registration rights that will be held
by certain of our stockholders following this offering, see
“Shares Eligible for Future Sale — Registration
Rights.”
Transfer Agent
and Registrar
The transfer agent and registrar for our common stock is
StockTrans, Inc.
Listing
We intend to apply to have our common stock listed on the NYSE
Alternext under the symbol “CWL.”
Prior to this offering, there has been no public market for our
common stock. No predictions can be made as to the effect, if
any, that market sales of shares of our common stock from time
to time, or the availability of shares of our common stock for
future sale, may have on the market price for shares of our
common stock. Sales of substantial amounts of common stock in
the public market, or the perception that such sales could
occur, could materially and adversely affect prevailing market
prices for our common stock and could impair our future ability
to obtain capital through an offering of equity or
equity-related securities at a time and price we deem
appropriate.
Sales of
Restricted Securities
After giving effect to this offering, we will have
12,389,791 shares of common stock outstanding assuming no
exercise of the underwriters’
over-allotment
option. Of the shares of our common stock, the
2,750,000 shares of common stock being sold in this
offering, plus any shares issued upon exercise of the
underwriters’
over-allotment
option, will be freely tradeable without restrictions, except
for any such shares that may be held or acquired by an
“affiliate” of ours, as that term is defined in
Rule 144 promulgated under the Securities Act, which shares
will be subject to volume limitations and other restrictions of
Rule 144 described below. Restricted shares may be sold in
the public market only if registered or if they qualify for an
exemption from registration under Rules 144 or 701
promulgated under the Securities Act, which rules are summarized
below. Substantially all of these shares will be subject to the
lock-up
agreements described below.
Rule 144
The shares of our common stock sold in this offering will
generally be freely transferable without restriction or further
registration under the Securities Act, except that any shares of
our common stock held by an “affiliate” of ours may
not be resold publicly except in compliance with the
registration requirements of the Securities Act or under an
exemption under Rule 144 or otherwise. Rule 144
permits our common stock that has been acquired by a person who
is an affiliate of ours, or has been an affiliate of ours within
the past three months, to be sold into the market in an amount
that does not exceed, during any three-month period, the greater
of:
•
one percent of the total number of shares of our common stock
outstanding; or
•
the average weekly reported trading volume of our common stock
for the four calendar weeks prior to the sale.
Such sales are also subject to specific manner of sale
provisions, a six month holding period requirement, notice
requirements and the availability of current public information
about us.
Rule 144 also provides that a person who is not deemed to
have been an affiliate of ours at any time during the three
months preceding a sale, and who has for at least six months
beneficially owned shares of our common stock that are
restricted securities, will be entitled to freely sell such
shares of our common stock subject only to the availability of
current public information regarding us. A person who is not
deemed to have been an affiliate of ours at any time during the
three months preceding a sale, and who has beneficially owned
for at least one year shares of our common stock that are
restricted securities, will be entitled to freely sell such
shares of our common stock under Rule 144 without regard to
the current public information requirements of Rule 144.
Rule 701
Rule 701, as currently in effect, permits resales of shares
in reliance upon Rule 144 but without compliance with some
of the restrictions of Rule 144, including the holding
period requirement. Most of our employees, officers, directors
or consultants who purchased shares under a written
compensatory plan or contract (such as our equity incentive
plans) may be entitled to rely on the resale provisions of
Rule 701, but all holders of Rule 701 shares are
required to wait until 90 days after the date of this
prospectus before selling their shares (or longer if they are
subject to the lock-up agreements described in “Plan of
Distribution”).
Additional
Registration Statement
Shortly after the effectiveness of this offering, we intend to
file a registration statement on
Form S-8
to register an aggregate of 1,000,000 shares of our common
stock underlying outstanding stock options or common stock
reserved for issuance under our 2009 Plan. This registration
statement will become effective upon filing, and shares covered
by it, to the extent issued, currently are eligible for sale in
the public market unless subject to the
lock-up
agreements described in “Plan of Distribution.”
Registration
Rights
Certain of our existing stockholders who will hold shares of our
common stock after the completion of this offering are entitled
to piggyback registration rights with respect to the
registration of registrable shares of our common stock under the
Securities Act pursuant to a securities purchase agreement,
dated as of October 24, 2002, as amended, a securities
exchange agreement, dated July 21, 2005, a stock purchase
agreement, dated as of September 30, 2005, and a
registration rights agreement, dated as of August 27, 2007.
Lock-Up
Agreements
Notwithstanding the foregoing, our executive officers, directors
and existing stockholders have agreed not to offer, sell,
contract to sell or otherwise dispose of 1,457,514 shares
of our common stock for a period of 180 days,
263,502 shares of our common stock for a period of
270 days and 6,736,394 shares of our common stock for
a period of 360 days after the date of this prospectus
pursuant to agreements with WR Hambrecht + Co.
This lock-up
period may be extended in certain circumstances. Additionally,
the underwriters may release all or a portion of the shares
subject to
lock-up
agreements at any time prior to the end of the specified lock-up
period. See “Plan of Distribution.”
The following is a general discussion of the material
U.S. federal income and estate tax consequences of the
ownership and disposition of common stock that may be relevant
to you if you are a
non-U.S. Holder.
In general, a
“non-U.S. Holder”
is any person or entity that is, for U.S. federal income
tax purposes, an individual, corporation, estate or trust other
than:
•
an individual who is a citizen or resident of the United States;
•
a corporation (or entity treated as a corporation for
U.S. federal income tax purposes) created or organized in
the United States or under the laws of the United States or of
any subdivision thereof;
•
an estate whose income is includible in gross income for
U.S. federal income tax purposes regardless of its source;
and
•
a trust that (1) is subject to the primary supervision of a
court within the United States and the control of one or more
U.S. persons, or (2) otherwise has validly elected to
be treated as a U.S. domestic trust.
This discussion is based on current law, which is subject to
change, possibly with retroactive effect, or different
interpretations. This discussion is limited to
non-U.S. Holders
who acquire common stock in this offering and hold such common
stock as capital assets within the meaning of the
U.S. Internal Revenue Code. Moreover, this discussion is
for general information only and does not address all the tax
consequences that may be relevant to you in light of your
personal circumstances, nor does it discuss special tax
provisions, which may apply to you if you relinquished
U.S. citizenship or residence.
If you are an individual, you may, in many cases, be deemed to
be a resident alien, as opposed to a nonresident alien, by
virtue of being present in the United States for at least
31 days in the calendar year and for an aggregate of at
least 183 days during a three-year period ending in the
current calendar year. For these purposes all the days present
in the current year, one-third of the days present in the
immediately preceding year, and one-sixth of the days present in
the second preceding year are counted. Resident aliens are
subject to U.S. federal income tax as if they were
U.S. citizens.
If a partnership, including any entity treated as a partnership
for U.S. federal income tax purposes, is a holder of our
common stock, the tax treatment of a partner in the partnership
will generally depend upon the status of the partner and the
activities of the partnership. A holder that is a partnership,
and the partners in such partnership, should consult their own
tax advisors regarding the tax consequences of the purchase,
ownership and disposition of our common stock.
Each prospective purchaser of common stock is advised to
consult a tax advisor with respect to current and possible
future tax consequences of purchasing, owning and disposing of
our common stock as well as any tax consequences that may arise
under the laws of any U.S. state, municipality or other
taxing jurisdiction.
Dividends
We do not anticipate paying any cash dividends on our common
stock in the foreseeable future. See “Dividend
Policy.” If dividends are paid on shares of our common
stock, such distributions will constitute dividends for
U.S. federal income tax purposes to the extent paid from
our current or accumulated earnings and profits, as determined
under U.S. federal income tax principles. If a distribution
exceeds our current and accumulated earnings and profits, it
will constitute a return of
capital that is applied to and reduces, but not below zero, a
non-U.S. Holder’s
adjusted tax basis in our common stock. Any remainder will
constitute gain from the sale or exchange of the common stock.
If dividends are paid, as a
non-U.S. Holder,
you will be subject to withholding of U.S. federal income
tax at a 30% rate or a lower rate as may be specified by an
applicable income tax treaty. To claim the benefit of a lower
rate under an income tax treaty, you must properly file with the
payor an Internal Revenue Service
Form W-8BEN,
or successor form, claiming an exemption from or reduction in
withholding under the applicable tax treaty. In addition, where
dividends are paid to a
non-U.S. Holder
that is a partnership or other pass-through entity, persons
holding an interest in the entity may need to provide
certification claiming an exemption or reduction in withholding
under the applicable treaty, and the entity may need to provide
an Internal Revenue Service
Form W-8IMY.
If dividends are considered effectively connected with the
conduct of a trade or business by you within the United States
and, where a tax treaty applies, are attributable to a
U.S. permanent establishment of yours, those dividends will
be subject to U.S. federal income tax on a net basis at
applicable graduated individual or corporate rates but will not
be subject to withholding tax, provided an Internal Revenue
Service
Form W-8ECI,
or successor form, is filed with the payor. If you are a foreign
corporation, any effectively connected dividends may, under
certain circumstances, be subject to an additional “branch
profits tax” at a rate of 30% or a lower rate as may be
specified by an applicable income tax treaty.
You must comply with the certification procedures described
above, or, in the case of payments made outside the United
States with respect to an offshore account, certain documentary
evidence procedures, directly or under certain circumstances
through an intermediary, to obtain the benefits of a reduced
rate under an income tax treaty with respect to dividends paid
with respect to your common stock. In addition, if you are
required to provide an Internal Revenue Service
Form W-8ECI
or successor form, as discussed above, you must also provide
your tax identification number.
If you are eligible for a reduced rate of U.S. withholding
tax pursuant to an income tax treaty, you may obtain a refund of
any excess amounts withheld by timely filing an appropriate
claim for refund with the Internal Revenue Service.
Gain on
Disposition of Common Stock
As a
non-U.S. Holder,
you generally will not be subject to U.S. federal income
tax on any gain recognized on a sale or other disposition of
common stock unless:
•
the gain is considered effectively connected with the conduct of
a trade or business by you within the United States and, where a
tax treaty applies, is attributable to a U.S. permanent
establishment of yours (in which case you will be taxed in the
same manner as a U.S. person, and if you are a foreign
corporation, you may be subject to an additional branch profits
tax equal to 30% or a lower rate as may be specified by an
applicable income tax treaty);
•
you are an individual who holds the common stock as a capital
asset and are present in the United States for 183 or more days
in the taxable year of the sale or other disposition and certain
other conditions are met (in which case you will be subject to a
30% tax on the gain); or
•
we are or become a U.S. real property holding corporation
(USRPHC). We believe that we are not currently, and are likely
not to become, a USRPHC. If we were to become a
USRPHC, then gain on the sale or other disposition of common
stock by you generally would not be subject to U.S. federal
income tax provided that, at that time:
•
the common stock is “regularly traded on an established
securities market”; and
•
you do not actually or constructively own more than 5% of the
common stock during the shorter of (i) the five-year period
ending on the date of such disposition or (ii) the period
of time during which you held such shares.
Federal Estate
Tax
If you are an individual, common stock held at the time of your
death will be included in your gross estate for
U.S. federal estate tax purposes, and may be subject to
U.S. federal estate tax, unless an applicable estate tax
treaty provides otherwise.
Information
Reporting and Backup Withholding Tax
We must report annually to the Internal Revenue Service and to
each of you the amount of dividends paid to you and the tax
withheld with respect to those dividends, regardless of whether
withholding was required. Copies of the information returns
reporting those dividends and withholding may also be made
available to the tax authorities in the country in which you
reside under the provisions of an applicable income tax treaty
or other applicable agreements.
Backup withholding is generally imposed (currently at a 28%
rate) on certain payments to persons that fail to furnish the
necessary identifying information to the payor. You generally
will be subject to backup withholding tax with respect to
dividends paid on your common stock unless you certify your
non-U.S. status.
Dividends subject to withholding of U.S. federal income tax
as described above in “Dividends” would not be subject
to backup withholding.
The payment of proceeds of a sale of common stock effected by or
through a U.S. office of a broker is subject to both backup
withholding and information reporting unless you provide the
payor with your name and address and you certify your
non-U.S. status
or you otherwise establish an exemption. In general, backup
withholding and information reporting will not apply to the
payment of the proceeds of a sale of common stock by or through
a foreign office of a broker. If, however, such broker is, for
U.S. federal income tax purposes, a U.S. person, a
controlled foreign corporation, a foreign person that derives
50% or more of its gross income for certain periods from the
conduct of a trade or business in the United States or a foreign
partnership that at any time during its tax year either is
engaged in the conduct of a trade or business in the United
States or has as partners one or more U.S. persons that, in
the aggregate, hold more than 50% of the income or capital
interest in the partnership, backup withholding will not apply
but such payments will be subject to information reporting,
unless such broker has documentary evidence in its records that
you are a
non-U.S. Holder
and certain other conditions are met or you otherwise establish
an exemption.
Any amounts withheld under the backup withholding rules
generally will be allowed as a refund or a credit against your
U.S. federal income tax liability provided the required
information is furnished in a timely manner to the Internal
Revenue Service.
In accordance with the terms of the underwriting agreement
between WR Hambrecht + Co, LLC, ThinkEquity LLC
and us, the underwriters have agreed to purchase from us that
number of shares of common stock set forth opposite each
underwriter named below at the public offering price less the
underwriting discount described on the cover page of this
prospectus.
Number of
Underwritten
Name of Underwriters
Shares
WR Hambrecht + Co, LLC
ThinkEquity LLC
Total:
2,750,000
The underwriting agreement provides that the obligations of the
underwriters are subject to various conditions, including the
absence of any material adverse change in our business, and the
receipt of certificates, opinions and letters from us and our
counsel. Subject to those conditions, the underwriters are
committed to purchase all of the shares of our common stock
offered by this prospectus if any of the shares are purchased.
Commissions and
Discounts
The underwriters propose to offer the shares of our common stock
directly to the public at the offering price set forth on the
cover page of this prospectus, as this price is determined by
the OpenIPO process described below, and to certain dealers at
this price less a concession not in excess of
$ per share. The underwriters may
allow, and dealers may re-allow, a concession not to exceed
$ per share on sales to other
dealers. Any dealers that participate in the distribution of our
common stock may be deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act, and any
discount, commission or concession received by them and any
provided by the sale of the shares by them may be deemed to be
underwriting discounts and commissions under the Securities Act.
After completion of the initial public offering of the shares,
to the extent that the underwriters are left with shares for
which successful bidders have failed to pay, the underwriters
may sell those shares at a different price and with different
selling terms.
The following table shows the per share and total underwriting
discount to be paid to the underwriters by us in connection with
this offering. The underwriting discount has been determined
through negotiations between us and the underwriters, and has
been calculated as a percentage of the offering price. These
amounts are shown assuming both no exercise and full exercise of
the over-allotment option.
Per Share
No Exercise
Full Exercise
Initial public offering price
$
$
$
Underwriting discount
$
$
$
Proceeds, before expenses, to us
$
$
$
We estimate that the costs of this offering, exclusive of the
underwriting discount, will be approximately
$ million. An electronic
prospectus is available on the website maintained by
WR Hambrecht + Co and may also be made available
on websites maintained by selected dealers and selling group
members participating in this offering.
The distribution method being used in this offering is known as
the OpenIPO auction, which differs from methods traditionally
used in underwritten public offerings. In particular, as
described under the captions “Determination of Public
Offering Price” and “Allocation of Shares” below,
the public offering price and the allocation of shares are
determined by an auction conducted by the underwriters and other
factors as described below. All qualified individual and
institutional investors that have an account with the
underwriters or a participating dealer may place bids in an
OpenIPO auction. Requirements for valid bids are discussed below
in the section titled “Requirements for Valid Bids.”
The following describes how the underwriters and some selected
dealers conduct the auction process and confirm bids from
prospective investors:
Prior to
Effectiveness of the Registration Statement
Before the registration statement relating to this offering
becomes effective, but after a preliminary prospectus is
available, the auction will open and the underwriters and
participating dealers will solicit bids from prospective
investors through individual meetings, the Internet, by
telephone and facsimile. The bids specify the number of shares
of our common stock the potential investor proposes to purchase
and the price the potential investor is willing to pay for the
shares. These bids may be above or below the price range set
forth on the cover page of the prospectus. The minimum size of
any bid is 100 shares. Bidders may submit multiple bids in
the auction.
The shares offered by this prospectus may not be sold, nor may
offers to buy be accepted, prior to the time that the
registration statement filed with the Securities and Exchange
Commission becomes effective. A bid received by an underwriter
or a dealer involves no obligation or commitment of any kind
prior to the notice of acceptance being sent, which will occur
after effectiveness of the registration statement and closing of
the auction. Bids can be modified at any time prior to the
closing of the auction.
Potential investors may contact the underwriters or dealer
through which they submitted their bid to discuss general
auction trends or to consult on bidding strategy. The current
clearing price is at all times kept confidential and will not be
disclosed during the OpenIPO auction to any bidder; however, the
underwriters or participating dealers may discuss general
auction trends with potential investors. General auction trends
may include a general description of the bidding trends or the
anticipated timing of the offering. In all cases, any oral
information provided with respect to general auction trends by
any underwriters or dealer is subject to change. Any general
auction trend information that is provided orally by an
underwriter or participating dealer is necessarily accurate only
as of the time of inquiry and may change significantly prior to
the auction closing. Therefore, bidders should not assume that
any particular bid will receive an allocation of shares in the
auction based on any auction trend information provided to them
orally by any underwriter or participating dealer.
Approximately two business days prior to the registration
statement being declared effective, prospective investors will
receive, by email, telephone or facsimile, a notice indicating
the proposed effective date. Potential investors may at any time
expressly request that all, or any specific, communications
between them and the underwriters and participating dealers be
made by specific means of communication, including email,
telephone and facsimile. The underwriters and participating
dealers will contact the potential investors in the manner they
request.
After the registration statement relating to this offering has
become effective, potential investors who have submitted bids to
an underwriter or a dealer will be contacted by email, telephone
or facsimile. Potential investors will be advised that the
registration statement has been declared effective and that the
auction may close in as little as one hour following
effectiveness. Bids will continue to be accepted in the time
period after the registration statement is declared effective
but before the auction closes. Bidders may also withdraw their
bids in the time period following effectiveness but before the
notice of acceptance of their bid is sent.
Reconfirmation of
Bids
The underwriters will require that bidders reconfirm the bids
that they have submitted in the offering if any of the following
events occur:
•
more than 15 business days have elapsed since the bidder
submitted its bid in the offering;
•
there is a material change in the prospectus that requires that
we or the underwriters convey the material change to bidders in
the offering and file an amended registration statement.
If a reconfirmation of bids is required, the underwriters will
send an electronic notice (or communicate in an alternative
manner as requested by a bidder) to everyone who has submitted a
bid notifying them that they must reconfirm their bids by
contacting the underwriters or participating dealers with which
they have their brokerage accounts. Bidders will have a minimum
of four hours to reconfirm their bids from the time the notice
requesting reconfirmation is sent. Bidders will have the ability
to modify or reconfirm their bids at any time until the auction
closes. If bidders do not reconfirm their bids before the
auction is closed (which will be no sooner than four hours after
the request for reconfirmation is sent), we and the underwriters
will disregard their bids in the auction, and they will be
deemed to have been withdrawn. If appropriate, the underwriters
may include the request for reconfirmation in a notice of
effectiveness of the registration statement.
Changes in the
Price Range or Offering Size Before the Auction is
Closed
Based on the auction demand, we and the underwriters may elect
to change the price range or the number of shares being sold in
the offering either before or after the Securities and Exchange
Commission declares the registration statement effective. If we
and the underwriters elect to change the price range or the
offering size after effectiveness of the registration statement,
the underwriters will keep the auction open for at least one
hour after notifying bidders of the new auction terms. If the
change in price range or offering size is not otherwise material
to this offering, we and the underwriters or participating
dealers will:
•
provide notice on the WR Hambrecht + Co OpenIPO
website of the revised price range or number of shares to be
sold in this offering, as the case may be;
•
if appropriate, issue a press release announcing the revised
price range or number of shares to be sold in this offering, as
the case may be; and
•
send an electronic notice (or communicate in an alternative
manner as requested by a bidder) to everyone who has submitted a
bid notifying them of the revised price range or number of
shares to be sold in this offering, as the case may be.
In these situations, the underwriters could accept an
investor’s bid after the Securities and Exchange Commission
declares the registration statement effective without requiring
a bidder to
reconfirm. The underwriters may also decide at any time to
require potential investors to reconfirm their bids, and if they
fail to do so, unconfirmed bids will be invalid.
In the event that the changes to the price range or the offering
size constitute material changes, alone or in the aggregate, to
the previously provided disclosure, we will reconfirm all bids
that have been submitted in the auction after notifying bidders
of the new auction terms. In the event that there is a material
change to the price range or the offering size after
effectiveness of the registration statement, we will file a
post-effective amendment to the registration statement
containing the new auction terms prior to accepting any offers.
Changes in the
Price Range or Offering Size After the Auction is Closed and
Pricing Outside the Price Range
If we determine after the auction is closed that the initial
public offering price will be above or below the stated price
range in the auction but that it will not result in any material
change to the previously provided disclosure, the underwriters
may accept all successful bids without reconfirmation.
Similarly, if after effectiveness of the registration statement
and the auction is closed the number of shares sold in the
offering is increased or decreased in a manner that is not
otherwise material to this offering, the underwriters may accept
all successful bids without reconfirmation. In this situation
the underwriters and participating dealers will communicate the
final price and size of the offering in the notice of acceptance
that is sent to successful bidders.
If we determine, after the auction is closed, that the initial
public offering price will be outside of the price range or we
elect to change the size of the offering, and the public
offering price
and/or
change in the offering size, alone or in the aggregate,
constitute material changes to the previously provided
disclosure, then we may convey the final price and offering size
to all bidders in the auction, file a post-effective amendment
to the registration statement with the final price and offering
size, reconfirm all bids and accept offers after the
post-effective amendment has been declared effective by the
Securities and Exchange Commission. In the alternative, we may
re-open the auction pursuant to the following procedures:
•
WR Hambrecht + Co will provide notice on the
WR Hambrecht + Co OpenIPO website that the
auction has re-opened with a revised price range or offering
size, as the case may be;
•
we and the underwriters and participating dealers will issue a
press release announcing the new auction terms;
•
the underwriters and participating dealers will send an
electronic notice (or communicate in an alternative manner as
requested by a bidder) to everyone who has submitted a bid
notifying them that the auction has re-opened with a revised
price range or offering size, as the case may be;
•
the underwriters and participating dealers will reconfirm all
bids in the auction; and
•
we will file a post-effective amendment to the registration
statement containing the new auction terms and have the
post-effective amendment declared effective prior to the
acceptance of any offers.
Closing of the
Auction and Pricing
The auction will close and a public offering price will be
determined after the registration statement becomes effective at
a time agreed to by us and WR Hambrecht + Co,
which we anticipate will be after the close of trading on the
NYSE Alternext on the same day on which the registration
statement is declared effective. The auction may close in as
little as one hour following effectiveness
of the registration statement. However, the date and time at
which the auction will close and a public offering price will be
determined cannot currently be predicted and will be determined
by us and WR Hambrecht + Co based on general
market conditions during the period after the registration
statement is declared effective. If we are unable to close the
auction, determine a public offering price and file a final
prospectus with the Securities and Exchange Commission within
15 days after the registration statement is initially
declared effective, we will be required to file with the
Securities and Exchange Commission and have declared effective a
post-effective
amendment to the registration statement before the auction may
be closed and before any bids may be accepted.
Once a potential investor submits a bid, the bid remains valid
unless subsequently withdrawn by the potential investor.
Potential investors are able to withdraw their bids at any time
before the notice of acceptance is sent by notifying the
underwriters or participating dealer through which they
submitted their bid. The auction website will not permit
modification or cancellation of bids after the auction closes.
Therefore, if a potential investor that bid through the Internet
wishes to cancel a bid after the auction closes the investor may
have to contact WR Hambrecht + Co (or the
participating dealer through which the investor submitted the
bid) by telephone, facsimile or email (or as specified by the
underwriters or participating dealer through which the bidder
submitted the bid).
Following the closing of the auction, the underwriters determine
the highest price at which all of the shares offered, including
shares that may be purchased by the underwriters to cover any
over-allotments, may be sold to potential investors. This price,
which is called the “clearing price,” is determined
based on the results of all valid bids at the time the auction
is closed. The clearing price is not necessarily the public
offering price, which is set as described in “Determination
of Initial Public Offering Price” below. The public
offering price determines the allocation of shares to potential
investors, with all valid bids submitted at or above the public
offering price receiving a pro rata portion of the shares bid
for.
You will have the ability to withdraw your bid at any time until
the notice of acceptance is sent. The underwriters will accept
successful bids by sending notice of acceptance after the
auction closes and a public offering price has been determined,
and bidders who submitted successful bids will be obligated to
purchase the shares allocated to them regardless of
(1) whether such bidders are aware that the registration
statement has been declared effective and that the auction has
closed or (2) whether they are aware that the notice of
acceptance of that bid has been sent. The underwriters will not
cancel or reject a valid bid after the notices of acceptance
have been sent.
Once the auction closes and a clearing price is set as described
below, the underwriters or a participating dealer accepts the
bids that are at or above the public offering price but may
allocate to a prospective investor fewer shares than the number
included in the investor’s bid, as described in
“Allocation of Shares” below.
Determination of
Initial Public Offering Price
The public offering price for this offering is ultimately
determined by negotiation between the underwriters and us after
the auction closes and does not necessarily bear any direct
relationship to our assets, current earnings or book value or to
any other established criteria of value, although these factors
are considered in establishing the initial public offering
price. Prior to this offering, there has been no public market
for our common stock. The principal factor in establishing the
public offering price is the clearing price resulting from the
auction, although other factors are considered as described
below. The clearing price is used by the underwriters and us as
the principal benchmark, among other considerations described
below, in determining the public offering price for the stock
that will be sold in this offering.
The clearing price is the highest price at which all of the
shares offered, including the shares that may be purchased by
the underwriters to cover any over-allotments, may be sold to
potential investors, based on the valid bids at the time the
auction is closed. The shares subject to the underwriters’
over-allotment option, to the extent that the underwriters
over-allot shares in the offering, are used to calculate the
clearing price whether or not the option is actually exercised.
If the underwriters over-allot shares in excess of the number of
shares subject to the over-allotment option, the shares in
excess of the over-allotment option will not be used to
calculate the clearing price. Based on the auction results, we
may elect to change the number of shares sold in the offering.
Depending on the public offering price and the amount of the
increase or decrease, an increase or decrease in the number of
shares to be sold in the offering could affect the clearing
price and result in either more or less dilution to potential
investors in this offering.
Depending on the outcome of negotiations between the
underwriters and us, the public offering price may be lower, but
will not be higher, than the clearing price. The bids received
in the auction and the resulting clearing price are the
principal factors used to determine the public offering price of
the stock that will be sold in this offering. The public
offering price may be lower than the clearing price depending on
a number of additional factors, including general market trends
or conditions, the underwriters’ assessment of our
management, operating results, capital structure and business
potential and the demand and price of similar securities of
comparable companies. We and the underwriters may also agree to
a public offering price that is lower than the clearing price in
order to facilitate a wider distribution of the stock to be sold
in this offering. For example, we and the underwriters may elect
to lower the public offering price to include certain
institutional or retail bidders in this offering. We and the
underwriters may also lower the public offering price to create
a more stable post-offering trading price for our shares.
The public offering price always determines the allocation of
shares to potential investors. Therefore, if the public offering
price is below the clearing price, all valid bids that are at or
above the public offering price receive a pro rata portion of
the shares bid for. If sufficient bids are not received, or if
we do not consider the clearing price to be adequate, or if we
and the underwriters are not able to reach agreement on the
public offering price, then we and the underwriters will either
postpone or cancel this offering. Alternatively, we may file
with the Securities and Exchange Commission a post-effective
amendment to the registration statement in order to conduct a
new auction.
The following simplified example illustrates how the public
offering price is determined through the auction process:
Company X offers to sell 1,500 shares in its public
offering through the auction process. The underwriters, on
behalf of Company X, receive five bids to purchase, all of which
are kept confidential until the auction closes.
The first bid is to pay $10.00 per share for 1,000 shares.
The second bid is to pay $9.00 per share for 100 shares.
The third bid is to pay $8.00 per share for 900 shares. The
fourth bid is to pay $7.00 per share for 400 shares. The
fifth bid is to pay $6.00 per share for 800 shares.
Assuming that none of these bids are withdrawn or modified
before the auction closes, and assuming that no additional bids
are received, the clearing price used to determine the public
offering price would be $8.00 per share, which is the highest
price at which all 1,500 shares offered may be sold to
potential investors who have submitted valid bids. However, the
shares may be sold at a price below $8.00 per share based on
negotiations between Company X and the underwriters.
If the public offering price is the same as the $8.00 per share
clearing price, the underwriters would accept bids at or above
$8.00 per share. Because 2,000 shares were bid for at or
above the
clearing price, each of the three potential investors who bid
$8.00 per share or more would receive approximately 75% (1,500
divided by 2,000) of the shares for which bids were made. The
two potential investors whose bids were below $8.00 per share
would not receive any shares in this example.
If the public offering price is $7.00 per share, the
underwriters would accept bids that were made at or above $7.00
per share. No bids made at a price of less than $7.00 per share
would be accepted. The four potential investors with the highest
bids would receive a pro rata portion of the 1,500 shares
offered, based on the 2,400 shares they requested, or 62.5%
(1,500 divided by 2,400) of the shares for which bids were made.
The potential investor with the lowest bid would not receive any
shares in this example.
As described in “Allocation of Shares” below, because
bids that are reduced on a pro rata basis may be rounded down to
round lots, a potential investor may be allocated less than the
pro rata percentage of the shares bid for. Thus, if the pro rata
percentage was 75%, the potential investor who bids for
200 shares may receive a pro rata allocation of
100 shares (50% of the shares bid for), rather than
receiving a pro rata allocation of 150 shares (75% of the
shares bid for).
The following table illustrates the example described above,
after rounding down any bids to the nearest round lot in
accordance with the allocation rules described below, and
assuming that the initial public offering price is set at $8.00
per share. The table also assumes that these bids are the final
bids, and that they reflect any modifications that have been
made to reflect any prior changes to the offering range, and to
avoid the issuance of fractional shares.
Initial Public Offering of Company X
Auction Results
Bid Information
Approximate
Cumulative
Allocation
Shares
Shares
Bid
Shares
Requested
Clearing
Amount
Requested
Requested
Price
Allocated
Shares
Price
Raised
1,000
1,000
$
10.00
700
75.0
%
$
8.00
$
5,600
100
1,100
$
9.00
100
75.0
%
$
8.00
$
800
Clearing Price
900
2,000
$
8.00
700
75.0
%
$
8.00
$
5,600
400
2,400
$
7.00
0
0.0
%
—
—
800
3,200
$
6.00
0
0.0
%
—
—
Total
1,500
$
12,000
Allocation of
Shares
Bidders receiving a pro rata portion of the shares they bid for
generally receive an allocation of shares on a round-lot basis,
rounded to multiples of 100 or 1,000 shares, depending on
the size of the bid. No bids are rounded to a round lot higher
than the original bid size. Because bids may be rounded down to
round lots in multiples of 100 or 1,000 shares, some
bidders may receive allocations of shares that reflect a greater
percentage decrease in their original bid than the average pro
rata decrease. Thus, for example, if a bidder has confirmed a
bid for 200 shares, and there is an average pro rata
decrease of all bids of 30%, the bidder may receive an
allocation of 100 shares (a 50% decrease from
200 shares) rather than receiving an allocation of
140 shares (a 30% decrease from 200 shares). In
addition, some bidders may receive allocations of shares that
reflect a lesser percentage decrease in their original bid than
the average pro rata decrease. For example, if a bidder has
submitted a bid for 100 shares, and there is an average pro
rata decrease of all bids of 30%, the bidder may receive an
allocation of all 100 shares to avoid having the bid
rounded down to zero.
Generally the allocation of shares in this offering will be
determined in the following manner, continuing the first example
above:
•
Any bid with a price below the public offering price is
allocated no shares.
•
The pro rata percentage is determined by dividing the number of
shares offered (including any over allotted shares) by the total
number of shares bid at or above the public offering price. In
this example, if there are 2,000 shares bid for at or above
the public offering price, and 1,500 shares offered in the
offering, then the pro rata percentage is 75%.
•
All of the successful bids are then multiplied by the pro rata
percentage to determine the allocations before rounding. For
example, the three winning bids for 1,000 shares (Bid 1),
100 shares (Bid 2) and 900 shares (Bid
3) would initially be allocated 750 shares,
75 shares and 675 shares, respectively, based on the
pro rata percentage.
•
The bids are then rounded down to the nearest 100 share
round lot, so the bids would be rounded to 700, 0 and
600 shares respectively. This creates a stub of 200
unallocated shares.
•
The 200 stub shares are then allocated to the bids. Continuing
the example above, because Bid 2 for 100 shares was rounded
down to 0 shares, 100 of the stub shares would be allocated
to Bid 2. If there were not sufficient stub shares to allocate
at least 100 shares to Bid 2, Bid 2 would not receive any
shares in the offering. After allocation of these shares, 100
unallocated stub shares would remain.
•
Because Bid 3 for 900 shares was reduced, as a result of
rounding, by more total shares than Bid 1 for 1,000 shares,
Bid 3 would then be allocated the remaining 100 stub shares up
to the nearest 100 round lot (from 600 shares to
700 shares).
If there are not sufficient remaining stub shares to enable a
bid to be rounded up to a round lot of 100 shares the
remaining unallocated stub shares would be allocated to smaller
orders that are below their bid amounts. The table below
illustrates the allocations in the example above.
Initial Public Offering of Company X
Pro Rata
Allocation
Allocation
Initial
(75% of
Initial
of Stub
Final
Bid
Initial Bid)
Rounding
Shares
Allocation
Bid 1
1,000
750
700
0
700
Bid 2
100
75
0
100
100
Bid 3
900
675
600
100
700
Total
2,000
1,500
1,300
200
1,500
Requirements for
Valid Bids
To participate in an OpenIPO offering, all bidders must have an
account with WR Hambrecht + Co or participating
dealers. Valid bids are those that meet the requirements,
including eligibility, account status and size, established by
the underwriters or participating dealers. In order to open a
brokerage account with WR Hambrecht + Co, a
potential investor must deposit $2,000 in its account. This
brokerage account will be a general account subject to
WR Hambrecht + Co’s customary rules, and
will not be limited to this offering. Bidders will be required
to have sufficient funds in their account to pay for the shares
they are allocated in the auction at settlement, which is
generally on the third business day following the pricing of the
offering. The underwriters reserve the right, in their sole
discretion, to reject or reduce any bids that they deem
manipulative or disruptive or not creditworthy in order to
facilitate the orderly completion of the offering. For example,
in previous transactions for other issuers in which the auction
process was used, the underwriters have rejected or reduced bids
when the underwriters, in their sole discretion, deemed the bids
not creditworthy or had reason to question the bidder’s
investment intent or means to fund its bid. In the absence of
other information, the underwriters or participating dealers may
assess a bidder’s creditworthiness based solely on the
bidder’s history with the underwriter or participating
dealer. The underwriters and issuers in prior OpenIPO auction
offerings have also rejected or reduced bids that they deemed,
in their sole discretion, to be potentially manipulative,
disruptive, adverse to the issuer’s best interest or
because the bidder had a history of securities law violations or
alleged securities law violations. Suitability, eligibility and
account opening and funding requirements of participating
dealers may vary. As a result of these varying requirements, a
bidder may have its bid rejected by an underwriter or a
participating dealer while another bidder’s identical bid
is accepted.
The Closing of
the Auction and Allocation of Shares
The auction will close on a date and at a time estimated and
publicly disclosed in advance by the underwriters on the
websites of WR Hambrecht + Co at
www.wrhambrecht.com and www.openipo.com. The auction may close
in as little as one hour following effectiveness of the
registration statement. The 2,750,000 shares offered by this
prospectus, or 3,162,500 shares if the underwriters’
over-allotment option is exercised in full, will be purchased
from us by the underwriters and sold through the underwriters
and participating dealers to investors who have submitted valid
bids at or higher than the public offering price.
The underwriters or a participating dealer will notify
successful bidders by sending a notice of acceptance by email,
telephone, facsimile or mail (according to any preference
indicated by a bidder) informing bidders that the auction has
closed and that their bids have been accepted. The notice will
indicate the price and number of shares that have been allocated
to the successful bidder. Other bidders will be notified that
their bids have not been accepted.
Each participating dealer has agreed with the underwriters to
sell the shares it purchases from the underwriters in accordance
with the auction process described above, unless the
underwriters otherwise consent. The underwriters do not intend
to consent to the sale of any shares in this offering outside of
the auction process. The underwriters reserve the right, in
their sole discretion, to reject or reduce any bids that they
deem manipulative or disruptive in order to facilitate the
orderly completion of this offering, and reserve the right, in
exceptional circumstances, to alter this method of allocation as
they deem necessary to ensure a fair and orderly distribution of
the shares of our common stock. For example, large orders may be
reduced to ensure a public distribution and bids may be rejected
or reduced by the underwriters or participating dealers based on
eligibility or creditworthiness criteria. Once the underwriters
have closed the auction and accepted a bid, the allocation of
shares sold in this offering will be made according to the
process described in “Allocation of Shares” above, and
no shares sold in this offering will be allocated on a
preferential basis or outside of the allocation rules to any
institutional or retail bidders. In addition, the underwriters
or the participating dealers may reject or reduce a bid by a
prospective investor who has engaged in practices that could
have a manipulative, disruptive or otherwise adverse effect on
this offering.
Some dealers participating in the selling group may submit firm
bids that reflect indications of interest from their customers.
In these cases, the dealer submitting the bid is treated as the
bidder for the purposes of determining the clearing price and
allocation of shares.
Price and volume volatility in the market for our common stock
may result from the somewhat unique nature of the proposed plan
of distribution. Price and volume volatility in the market for
our common stock after the completion of this offering may
adversely affect the market price of our common stock.
We have granted the underwriters the right to purchase up to
412,500 additional shares at the public offering price set forth
on the front page of this prospectus less the underwriting
discount within 30 days after the date of this prospectus,
in each case solely to cover any over-allotments. To the extent
that an underwriter exercises this option, it will have a firm
commitment to purchase the additional shares and we will be
obligated to sell the additional shares to the underwriter. The
underwriters may exercise the option only to cover
over-allotments made in connection with the sale of shares
offered.
Lock-Up
Agreements
We have agreed not to, directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right
or warrant to purchase, lend, or otherwise transfer or dispose
of any shares of our common stock or any securities convertible
into or exercisable or exchangeable for shares of our common
stock for a period of 360 days after the date of this
prospectus without the prior written consent of
WR Hambrecht + Co, other than the shares of
common stock or options to acquire common stock issued under our
equity incentive plans. Notwithstanding the foregoing, if
(1) during the last 17 days of the
360-day
period after the date of this prospectus, we issue an earnings
release or publicly announce material news or if a material
event relating to us occurs or (2) prior to the expiration
of the
360-day
period after the date of this prospectus, we announce that we
will release earnings during the
16-day
period beginning on the last day of the
360-day
period, the above restrictions will continue to apply until the
expiration of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
The principal holders of our outstanding common stock prior to
this offering, and each of our directors and executive officers,
have agreed not to directly or indirectly, sell, offer, contract
to sell, transfer the economic risk of ownership in, make any
short sale, pledge or otherwise dispose of
1,457,514 shares, 263,502 shares and
6,736,394 shares of common stock or any securities
convertible into or exchangeable or exercisable for or any other
rights to purchase or acquire common stock, without the prior
written consent of WR Hambrecht + Co, for a
period of 180 days, 270 days and 360 days,
respectively, after the effective date of this prospectus, other
than (a) transfers of any shares of our common stock or
securities convertible into or exchangeable or exercisable for
our common stock either during his or her lifetime or on death
(i) by gift, will or intestacy or (ii) to a family
member or to a partnership or trust, the partners or
beneficiaries of which are exclusively the persons bound by the
foregoing terms
and/or a
family member or a foundation created by such individual,
(b) if the person bound by the foregoing terms is a
partnership, limited liability company, trust, corporation or
similar entity, it may (i) transfer the beneficial
ownership interest of such partnership, limited liability
company, trust, corporation or similar entity amongst the other
beneficial owners of such entity and (ii) distribute any
such shares or securities to its partners, stockholders, members
or affiliates; provided, however, that in each such case, prior
to any such transfer, each transferee shall execute an
agreement, reasonably satisfactory to
WR Hambrecht + Co, pursuant to which each
transferee shall agree to receive and hold such shares of common
stock, or securities convertible into or exchangeable or
exercisable for common stock, subject to foregoing terms, and
there shall be no further transfer except in accordance with the
foregoing terms and provided further that any such transfer
shall not involve a disposition for value and (c) shares of
our common stock in an issuer directed share program established
in connection with the offering. Notwithstanding the foregoing,
if (1) during the last 17 days of the 180, 270 or
360-day, as
applicable, period after the date of this prospectus, we issue
an earnings release or material news or a material event
relating to us occurs; or (2) prior to the expiration of
the 180, 270 or
360-day, as
applicable, period after the date of this prospectus, we
announce that we will release earnings results during the
16-day
period beginning on the last day of the 180, 270 or
360-day, as
applicable, period after the date of this prospectus, the
above restrictions will continue to apply until the expiration
of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
There are no specific criteria that
WR Hambrecht + Co requires for an early release
of shares subject to
lock-up
agreements. The release of any
lock-up will
be on a
case-by-case
basis. Factors in deciding whether to release shares may include
the length of time before the
lock-up
expires, the number of shares involved, the reason for release,
including financial hardship, market conditions and the trading
price of the common stock. WR Hambrecht + Co has
no present intention or understanding, implicit or explicit, to
release any of the shares subject to the
lock-up
agreements prior to the expiration of the 180, 270 or
360-day
period, as applicable.
Short Sales,
Stabilizing Transactions and Penalty Bids
In connection with this offering, the underwriters may purchase
and sell shares of common stock in the open market. These
transactions may include short sales, stabilizing transactions
and purchases to cover positions created by short sales. Any
short sales made by the underwriters would be made at the public
offering price. Short sales involve the sale by the underwriters
of a greater number of shares than it is required to purchase in
this offering. “Covered” short sales are sales made in
an amount not greater than the underwriters’ option to
purchase additional shares from us in this offering. The
underwriters may close out any covered short position by either
exercising the option to purchase additional shares or
purchasing shares in the open market. As described above, the
number of shares that may be sold pursuant to the
underwriters’ over-allotment option is included in the
calculation of the clearing price. In determining the source of
shares to close out the covered short position, the underwriters
will consider, among other things, the price of shares available
for purchase in the open market as compared to the price at
which it may purchase shares through the over-allotment option.
“Naked” short sales are any sales in excess of such
option. To the extent that the underwriters engage in any naked
short sales, the naked short position would not be included in
the calculation of the clearing price. The underwriters must
close out any naked short position by purchasing shares in the
open market. A naked short position is more likely to be created
if the underwriters are concerned that there may be downward
pressure on the price of the common stock in the open market
after pricing that could adversely affect investors who purchase
in this offering. Stabilizing transactions consist of various
bids for or purchases of common stock made by the underwriters
in the open market prior to the completion of this offering.
The underwriters may also impose a penalty bid. This occurs when
a particular dealer or underwriter repays to the underwriters a
portion of the underwriting discount or selling concession
received by it because the underwriters have repurchased shares
sold by or for the account of the dealer or underwriter in
stabilizing or short covering transactions.
These activities by the underwriters may stabilize, maintain or
otherwise affect the market price of the common stock. As a
result, the price of the common stock may be higher than the
price that otherwise might exist in the open market. If these
activities are commenced, the underwriters may discontinue them
at any time. These transactions may be effected on the NYSE
Alternext, in the over-the-counter market or otherwise.
WR Hambrecht + Co currently intends to act as a
market maker for the common stock following this offering. It is
not obligated to do so, however, and may discontinue any market
making at any time.
Indemnity
The underwriting agreement provides that we and the underwriters
have agreed to indemnify each other against specified
liabilities, including liabilities under the Securities Act, and
contribute to payments that each other may be required to make
relating to these liabilities.
Weil, Gotshal & Manges LLP, New York, New York will
pass upon the validity of the common stock offered hereby on
behalf of us. Goodwin Procter LLP, Boston, Massachusetts will
pass upon legal matters relating to this offering for the
underwriters. Certain attorneys of Weil, Gotshal &
Manges LLP and Goodwin Procter LLP beneficially own
approximately 0.2% and 0.7%, respectively, in us. In December
2008, we issued a promissory note to Weil, Gotshal &
Manges LLP in the principal amount of $1.0 million in lieu
of payment of accrued legal fees and expenses. The promissory
note issued to Weil, Gotshal & Manges LLP has an
interest rate of 3% per annum and will mature on the earlier to
occur of March 31, 2009 or the consummation of this
offering. A portion of the proceeds from this offering will be
used to repay such note.
The consolidated financial statements of Changing World
Technologies, Inc. and subsidiaries at December 31, 2007,
2006 and 2005, and for each of the three years in the period
ended December 31, 2007, appearing in this Prospectus and
Registration Statement have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set
forth in their report thereon, which contains an explanatory
paragraph describing conditions that raise substantial doubt
about the Company’s ability to continue as a going concern
as described in Note 1 to the consolidated financial
statements, appearing elsewhere herein, and are included in
reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
The financial statements of Renewable Environmental Solutions,
LLC at July 31, 2005 and for the seven months ended
July 31, 2005, appearing in this Prospectus and
Registration Statement have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set
forth in their report thereon appearing elsewhere herein, and
are included in reliance upon such report given on the authority
of such firm as experts in accounting and auditing.
On October 5, 2006, our board of directors, selected
Ernst & Young LLP as our independent auditors, and we
and Martorella & Grasso, LLP mutually agreed that
Martorella & Grasso, LLP would no longer act as our
auditors. In connection with the audits of our consolidated
financial statements for the years ended December 31, 2005
and 2004 and in the interim period through October 5, 2006,
there were no disagreements with Martorella & Grasso,
LLP on any matters of accounting principles or practices,
financial statement disclosure or auditing scope and procedures,
which if not resolved to the satisfaction of
Martorella & Grasso, LLP would have caused
Martorella & Grasso, LLP to make reference to the
matter in their report. Further during the same periods, there
were no “reportable events” as that term is described
in Item 304(a)(1)(v) of
Regulation S-K.
In addition, Martorella & Grasso LLP’s report on
the financial statements for either of the past two years
contained no adverse opinions or a disclaimers of opinion, or
was qualified or modified as to uncertainty, audit scope, or
accounting principles.
Ernst & Young LLP has reported on the financial
statements for the years ended December 31, 2007, 2006,
2005 and 2004 included in this prospectus. Prior to
October 5, 2006, we did not consult Ernst & Young
LLP on any accounting or financial matters.
We requested Martorella & Grasso, LLP to furnish a
letter addressed to the Securities and Exchange Commission
stating whether it agrees with these statements made by us and,
if not, stating the respects in which it does not agree. A copy
of this letter, dated as of August 11, 2008, which states that
it agrees with these statements, is filed as exhibit 16.1
to the registration statement of which this prospectus forms a
part.
We have filed with the Securities and Exchange Commission, under
the Securities Act, a registration statement on
Form S-1
with respect to the common stock offered by this prospectus.
This prospectus, which constitutes part of the registration
statement, does not contain all of the information set forth in
the registration statement or the exhibits and schedules which
are part of the registration statement, portions of which are
omitted as permitted by the rules and regulations of the
Securities and Exchange Commission. Statements made in this
prospectus regarding the contents of any contract or other
documents are summaries of the material terms of the contract or
document. With respect to each contract or document filed as an
exhibit to the registration statement, reference is made to the
corresponding exhibit. For further information pertaining to us
and to the common stock offered by this prospectus, reference is
made to the registration statement, including the exhibits and
schedules thereto, copies of which may be inspected without
charge at the public reference facilities at the Securities and
Exchange Commission at 100 F Street, NE,
Washington, D.C. 20549. Copies of all or any portion of the
registration statement may be obtained by calling the Securities
and Exchange Commission at
1-800-SEC-0330.
In addition, the Securities and Exchange Commission maintains a
website that contains reports, proxy and information statements
and other information that is filed electronically with the
Securities and Exchange Commission. The website can be accessed
at www.sec.gov.
After effectiveness of the registration statement, which
includes this prospectus, we will be required to comply with the
informational requirements of the Securities Exchange Act, and,
accordingly, will file current reports on
Form 8-K,
quarterly reports on
Form 10-Q,
annual reports on
Form 10-K,
proxy statements and other information with the Securities and
Exchange Commission. Those reports, proxy statements and other
information will be available for inspection and copying at the
public reference facilities and internet site of the Securities
and Exchange Commission referred to above.
We have audited the accompanying consolidated balance sheets of
Changing World Technologies, Inc. as of December 31, 2007
and 2006, and the related consolidated statements of operations,
stockholders’ equity, and cash flows for each of the three
years in the period ended December 31, 2007. These
financial statements are the responsibility of the
Company’s management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. We were not engaged to perform an
audit of the Company’s internal control over financial
reporting. Our audits included consideration of internal control
over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not
for the purpose of expressing an opinion on the effectiveness of
the Company’s internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by
management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable
basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of Changing World Technologies, Inc at
December 31, 2007 and 2006, and the consolidated results of
its operations and its cash flows for each of the three years
ended December 31, 2007, in conformity with
U.S. generally accepted accounting principles.
As discussed in Note 1 to the consolidated financial
statements, the Company’s recurring losses from operations
raise substantial doubt about its ability to continue as a going
concern. Management’s plans as to these matters also are
described in Note 1. The December 31, 2007 financial
statements do not include any adjustments that might result from
the outcome of this uncertainty.
As discussed in Note 1 to the consolidated financial
statements, on January 1, 2006, the Company adopted
Statement of Financial Accounting Standards No. 123(R),
Share Based Payment. Also, as discussed in Note 1 to
the consolidated financial statements, on January 1, 2007,
the Company adopted the provisions of Financial Accounting
Standards Board Interpretation No. 48, Accounting for
Uncertainty in Income Taxes.
Preferred stock, $0.01 par value: authorized
445,081 shares; 195,081 shares issued and outstanding
as of December 31, 2007 and 2006, respectively, with a
liquidation preference of $7,444,485 as of December 31, 2007
1,951
1,951
Common stock, $0.01 par value; 17,500,000 shares
authorized as of December 31, 2007, 10,500,000 shares
authorized as of December 31, 2006; 8,312,106 and
7,037,343 shares issued and outstanding as of
December 31, 2007 and 2006, respectively
Adjustments to reconcile net loss to net cash used in operating
activities:
Equity in net loss of joint venture
—
—
7,196,101
Stock-based compensation
121,970
861,885
476,974
Depreciation and amortization
2,243,741
2,052,635
773,733
Impairment of long-lived assets
—
157,345
1,342
Impairment of goodwill
—
—
13,672,350
Write-off of other assets
424,607
—
—
Changes in current assets and liabilities, net of effects of
acquisitions:
Accounts and tax credit receivable
328,260
(385,558
)
(38,154
)
Inventories
(179,969
)
75,202
(88,784
)
Prepaid expenses
18,201
28,321
(28,006
)
Related party receivables
109,623
(30,295
)
88,518
Other assets
(17,000
)
(71,250
)
(255,530
)
Accounts payable
(628,247
)
591,808
497,136
Accrued expenses
(285,782
)
527,035
(522,541
)
Long-term liabilities
(114,838
)
27,394
(85,229
)
Total adjustments to net loss
2,020,566
3,834,522
21,687,910
Net cash used in operating activities
(17,884,750
)
(17,924,359
)
(10,058,697
)
Cash flows from investing activities:
Investment in joint venture
—
—
(6,198,224
)
Purchases of property, plant and equipment
(2,320,436
)
(3,100,433
)
(2,045,589
)
Net cash used in investing activities
(2,320,436
)
(3,100,433
)
(8,243,813
)
Cash flows from financing activities:
Net proceeds from issuance of convertible debt
1,050,000
—
—
Subscription received
4,004,257
—
—
Proceeds from exercise of stock options
9,165
—
—
Net proceeds from issuance of common stock and warrants
23,200,000
17,133,110
22,806,781
Cash received in connection with the acquisition of Renewable
Environmental Solutions, LLC (1)
—
—
2,157,436
Net cash provided by financing activities
28,263,422
17,133,110
24,964,217
Net increase (decrease) in cash and cash equivalents
8,058,236
(3,891,682
)
6,661,707
Cash and cash equivalents at beginning of year
6,291,036
10,182,718
3,521,011
Cash and cash equivalents at end of year
$
14,349,272
$
6,291,036
$
10,182,718
Supplementary disclosure of noncash activity
(1)
The Company acquired net assets
plus $2,157,436 in cash in exchange for 978,689 shares of
its common stock and a warrant to purchase 327,488 shares
of its common stock. As such, the Company has treated the cash
received for its common stock and warrants in connection with
this transaction as a financing activity included in its
statement of cash flows. See Note 8 regarding the Renewable
Environmental Solutions, LLC acquisition.
Organization and
Summary of Significant Accounting Policies
Changing World Technologies, Inc. (the “Company” or
“CWT”) was incorporated in August 1997, as a holding
company for the purpose of providing funding and management
expertise to its wholly-owned subsidiaries that are responsible
for bringing specific emerging technologies to the marketplace.
The Company currently is headquartered in West Hempstead, New
York.
Resource Recovery Corporation (“RRC”) is a
wholly-owned subsidiary of the Company that was formed for the
purpose of marketing a technology known as Thermal Conversion
Process (“TCP”). TCP can convert a broad range of
organic wastes, including animal and food processing waste, trap
and low-value greases, mixed plastics, rubber and foam, into
renewable diesel and fertilizers. TCP emulates the earth’s
natural geological and geothermal processes that transform
organic material into fuels through the application of water,
heat and pressure in various stages. TCP is not dependent on
enzymes or bacteria, and the actual combined reaction times are
less than two hours for the key process steps. RRC is the
exclusive, worldwide licensee under various U.S. and foreign
patents and pending applications of AB-CWT, LLC
(“AB-CWT”), a related party, a subset of which are
directed to our propietary TCP technology as currently
implemented.
In December 2000, RRC entered into a license agreement with
ConAgra Foods Inc. (“ConAgra”) which formalized the
development of TCP for the animal and food processing waste
segment. ConAgra committed to utilize TCP to process the animal
and food processing waste products at ConAgra’s facilities
worldwide. A license fee of $2.3 million was paid to RRC
under the agreement for the worldwide license. Simultaneously,
CWT entered into an exclusive joint venture arrangement to
form Renewable Environmental Solutions, LLC.
(“RES”) with ConAgra Poultry Company (“CPC”)
as equal partners, to commercialize the use of TCP under the
license agreement with RRC, for processing animal and food
processing waste globally. In July 2003, CPC assigned its
ownership interest in RES to ConAgra Foods Refrigerated Foods
Co., Inc. (“CRF”) in conjunction with the sale of CPC
to Pilgrim’s Pride Corporation. In July 2005, CRF’s
50% interest in RES, plus cash in the amount of
$2.0 million was exchanged for 978,689 shares of our
common stock and a warrant to purchase 327,488 shares of
our common stock. As a result of this exchange, RES became a
wholly-owned subsidiary and the licensing agreement was
terminated.
RES operates an approximate 250
ton-per-day
facility, located in Carthage, Missouri, that converts animal
and food processing waste into renewable diesel and fertilizers.
The principal feedstock is supplied by Butterball, LLC under a
contract which expires in May 2010. The Company intends to
expand its use of TCP through the development and construction
of additional TCP facilities.
The Company has prepared its consolidated financial statements
under the assumption that it is a going concern. The Company has
devoted substantially all of its cash resources to the operation
of its facility in Carthage, Missouri, research and development,
and general and administrative expenses. As a result, the
Company has incurred an accumulated deficit of approximately
$99.04 million, $79.14 million and $57.38 million
as of December 31, 2007, 2006 and 2005, respectively, and
expects to incur continuing net operating losses. The
Company’s ongoing losses raise substantial doubt about its
ability to continue as a going concern. The consolidated
financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
The Company has financed its operations through proceeds from
the sales of common and preferred equity securities, issuance of
convertible debt, revenue and renewable diesel mixture tax
credit from the sale of renewable diesel. Based upon the
projected spending levels for the Company, the Company will
require additional funding for 2008. As a result, the Company
intends to monitor its liquidity position and to continue to
actively pursue fund-raising possibilities through the sale of
its equity securities. If the Company is unsuccessful in its
efforts to raise additional funds through the sale of its equity
securities, the incurrence of debt, contractual arrangement or
operations, it may be required to significantly reduce or
curtail its research and development activities and other
operations.
The Company will require, over the long-term, substantial new
funding to pursue new facility construction, research and
development and sales and marketing of its renewable diesel and,
beginning in the second quarter of 2008, the sale of
fertilizers. The amount of the Company’s future capital
requirements will depend on numerous factors, including the
progress of its research and development programs, the cost and
timing of new facility construction, the success of its efforts
to commercialize its renewable diesel and fertilizers, the costs
associated with protecting patents and other proprietary rights,
the development of marketing and sales capabilities and the
availability of third-party funding. There can be no assurance
that such funding will be available at all or on terms
acceptable to the Company.
Principles of
Consolidation
The consolidated financial statements have been prepared in
accordance with accounting principles generally accepted in the
United States (“US GAAP”) and include the accounts of
Changing World Technologies, Inc. and its majority-owned and
controlled subsidiaries. All significant inter-company
transactions and balances have been eliminated in consolidation.
The Company used the equity method of accounting for its fifty
percent (50%) investment in RES, a Delaware limited liability
company, through July 31, 2005. As of August 1, 2005,
the ownership interest in RES was increased to one hundred
percent (100%). In accordance with Statement of Financial
Accounting Standards (“SFAS”) No. 94,
“Consolidation of All Majority-Owned Subsidiaries,”the Company has consolidated RES, its wholly-owned subsidiary,
effective August 1, 2005.
Estimates
The preparation of financial statements in conformity with US
GAAP requires management to make estimates and assumptions that
affect the reported amount of assets and liabilities and
disclosure of contingent assets and liabilities at the date of
the financial statements, and amounts of income and expenses
during the reporting period. Actual results could differ from
those estimates.
Cash and Cash
Equivalents
Cash and cash equivalents include highly liquid investments
purchased with maturities of three months or less and consist
primarily of money market funds, commercial paper, and time
deposits.
Inventories
Inventories are stated at the lower of cost (determined on a
first-in,
first-out basis) or market. The Company evaluates its
inventories to determine excess or slow moving products based on
quantities on hand, current orders and expected future demand.
Inventory items of which the Company has an excess supply or
which are of lower quality, are stated at the net amount that
the Company expects to realize from the sale of such products.
The difference between our carrying cost and the net amount we
expect to realize from the sale of our inventory, which is
determined based on the lower of production cost or the market
value of the renewable diesel held in inventory, is charged to
cost of sales.
Property,
Plant and Equipment
Property, plant and equipment are recorded at cost. Depreciation
and amortization is provided on a straight-line basis over the
following estimated useful lives:
Buildings and improvements
22 years
Tools and pumps
5 years
Machinery, including pollution control equipment, lab equipment
and instruments
Leasehold improvements are amortized over the shorter of the
term of the related lease or the life of the improvement.
Repairs and maintenance are expensed as incurred. Spare parts
are expensed as purchased.
Goodwill
At December 31, 2005, the Company reviewed the goodwill
resulting from the acquisition of RES and determined that the
value was fully impaired. The Company followed the provisions of
SFAS No. 142, “Goodwill and Other Intangible
Assets” (“SFAS 142”) and performed their
annual goodwill impairment test on the first day of the fourth
quarter. The goodwill of RES was determined to be impaired as
the carrying amount of RES exceeded its estimated fair value.
The fair value was determined using a discounted cash flows
method.
Research and
Development
Research and development costs are charged to expense as
incurred.
Impairment of
Long-Lived Assets
The Company accounts for its investments in long-lived assets in
accordance with SFAS No. 144, “Accounting for the
Impairment or Disposal of Long-Lived Assets”
(“SFAS No. 144”). SFAS No. 144
requires a company to review its long-lived assets for
impairment whenever events or changes in circumstances indicate
that the carrying value of an asset may not be recoverable.
The Company periodically evaluates the recoverability of the net
carrying value of its long-lived assets. An impairment loss for
the difference between a long-lived assets carrying value and
its fair value is recognized when the carrying value of the
long-lived asset exceeds its undiscounted
future cash flows and its fair value. The Company has recorded
impairment losses of $0, $157,345 and $1,342 during the years
ended December 31, 2007, 2006 and 2005, respectively.
Fair Value of
Financial Instruments
The book value of the Company’s financial instruments,
including cash and cash equivalents, accounts payable and
accrued expenses, approximate fair value because of their
short-term maturities.
Concentration
of Credit Risk
The Company invests excess cash in short-term money market
instruments and commercial paper through several high quality
financial institutions. The balance in these accounts at
December 31, 2007, 2006 and 2005 was $5,112,510, $1,023,033
and $4,701,872, respectively. Other cash balances are deposited
with local banking institutions and are insured by the Federal
Deposit Insurance Corporation up to $100,000 per financial
institution.
In fiscal year ended December 31, 2007, the Company had
sales to two different customers which accounted for
approximately 73% and 24% of sales, of which one of the
customers represented 88% of total accounts receivable as of
December 31, 2007.
In fiscal year ended December 31, 2006, the Company had
sales to three different customers which accounted for 53%, 37%
and 10% of sales, of which one of the customers represented 60%
of total accounts receivable as of December 31, 2006.
In fiscal year ended December 31, 2005, the Company had
sales to three different customers which accounted for 51%, 36%
and 11% of sales.
Long- Term
Liabilities
Long-term liabilities consist of obligations which are expected
to be settled in a period greater than one (1) year and
consist of a settlement agreement with a former employee and a
dispute with a mechanical contractor in the amounts of
approximately $445,000 and $1,149,000, respectively, for the
year ended December 31, 2007. Long-term liabilities for the
year ended December 31, 2006 consist of a settlement
agreement with a former employee, a dispute with a mechanical
contractor, a note payable to Siemens and a license fee in the
amounts of approximately $473,000, $1,149,000, $58,000 and
$29,000, respectively. See Note 17.
Income
Taxes
Income taxes are accounted for using the liability method in
accordance with SFAS No. 109, “Accounting for
Income Taxes” (“SFAS 109”). Under this
method, deferred income taxes are recognized for the future tax
consequence of differences between the tax and financial
reporting basis of assets and liabilities at each reporting
period. A valuation allowance is established to reduce deferred
tax assets to the amounts expected to be realized.
On January 1, 2007, the Company adopted Financial
Accounting Standards Board (“FASB”) Interpretation
No. 48, “Accounting for Uncertainty in Income
Taxes,” (“FIN 48”), which clarifies the
accounting for uncertainty in income taxes recognized in the
financial statements in accordance with SFAS 109. The
interpretation prescribes a recognition threshold and
measurement attribute for the financial statement recognition
and measurement of a tax position taken or expected to be taken
in a tax return. It also provides guidance on derecognizing,
classification, interest and penalties,
accounting in interim periods, disclosure and transition. The
Company believes that its income tax filing positions and
deductions will be sustained on audit and does not anticipate
any adjustments that will result in a material change to its
financial position. However, the Company cannot predict with
certainty the interpretations or positions that tax authorities
may take regarding specific tax returns filed by the Company
and, even if the Company believes its tax positions are correct,
may determine to make settlement payments in order to avoid the
costs of disputing particular positions taken. No reserves for
uncertain income tax positions have been recorded pursuant to
FIN 48. In addition, the Company did not record a
cumulative effect adjustment related to the adoption of
FIN 48.
The Company is no longer subject to federal, state and local
income tax examinations for tax years before 2004. The Company
has elected to reflect interest and penalties related to
uncertain tax positions as part of the income tax provision in
the accompanying consolidated statements of operations.
Stock-Based
Compensation
Effective January 1, 2006, the Company adopted
SFAS No. 123R, “Share-Based Payment”
(“SFAS 123R”) and related interpretations, which
superseded the provisions of Accounting Principles Board
(“APB”) Opinion No. 25, “Accounting for
Stock Issued to Employees” (“APB 25”) and related
interpretations. SFAS 123R requires that all stock-based
compensation be recognized as an expense in the financial
statements and that such cost be measured at the fair value of
the award. SFAS 123R was adopted using the modified
prospective method, which requires the Company to recognize
compensation expense on a prospective basis. Therefore, prior
period financial statements have not been restated. Under this
method, in addition to reflecting compensation expense for new
stock-based awards, expense attributable to the remaining
service period of awards that had been granted in prior periods
is also recognized.
With the adoption of SFAS 123R, the Company is required to
record the fair value of stock-based compensation awards as an
expense. In order to determine the fair value of stock options
on the date of grant, the Company utilizes the Black-Scholes
option-pricing model. Inherent in this model are assumptions
related to expected stock-price volatility, option life,
risk-free interest rate and dividend yield. While the risk-free
interest rate and dividend yield are less subjective
assumptions, typically based on factual data derived from public
sources, the expected stock-price volatility and option life
assumptions require a greater level of judgment which makes them
critical accounting estimates. The Company uses an expected
stock-price volatility assumption which is primarily based on
the average implied volatility of the stock of a group of
comparable alternative energy companies, whose stocks are
publicly traded.
The weighted average assumptions used for stock-based
compensation awards for each of the years presented are as
follows:
2007
2006
2005
Volatility
65%
65%
63.7%
Weighted-average estimated life
10 years
10 years
10 years
Weighted-average risk-free interest rate
4.7%
4.6%- 4.7%
4.1%-4.8%
Dividend yield
—
—
—
In November 2005, the Financial Accounting Standards Board
(“the FASB”) issued FASB Staff Position
(“FSP”) FSP SFAS 123(R)-3, “Transition
Election Related to Accounting for the Tax Effects of
Share-Based Payment Awards” (“SFAS 123R”) to
provide an alternate transition method for the
implementation of SFAS No. 123R. Because some entities
do not have, and may not be able to re-create, information about
the net excess tax benefits that would have qualified as such
had those entities adopted SFAS No. 123R for
recognition purposes, this FSP provides an elective alternative
transition method. The method comprises (a) a computational
component that establishes a beginning balance of the additional
paid-in capital pool (“APIC pool”) related to employee
compensation and (b) a simplified method to determine the
subsequent impact on the APIC pool of employee awards that are
fully vested and outstanding upon the adoption of
SFAS No. 123R. The Company has elected to utilize the
shortcut method in accordance with SFAS 123R.
Prior to January 1, 2006, the Company accounted for
employee stock option plans under the intrinsic value method in
accordance with APB 25. Under APB 25, generally no compensation
expense is recorded when terms of the award are fixed and the
exercise price of employee and director stock options equals or
exceeds the fair value of the underlying stock on the date of
the grant.
As a result of adopting SFAS 123R, the Company’s net
loss for the years ended December 31, 2007 and 2006 was
approximately $122,000 and $277,000, respectively, higher than
if the Company had continued to account for stock-based
compensation under APB 25. SFAS 123R also requires that
excess tax benefits related to stock option exercises be
reflected as financing cash inflows instead of operating cash
inflows. For the years ended December 31, 2007 and 2006, no
excess tax benefits were recognized.
The following table sets forth the amount of expense related to
stock-based payment arrangements included in specific line items
in the accompanying consolidated statement of operations for the
years ended:
December 31
2007
2006
2005
Cost of goods sold
$
12,978
$
34,192
$
—
Selling, general and administrative
90,560
821,484
435,798
Research and development
18,432
6,209
41,176
Total
$
121,970
$
861,885
$
476,974
As of December 31, 2007, there was $208,330 of total
unrecognized compensation cost related to nonvested, stock-based
compensation granted under the Company’s stock option and
restricted stock plans, which will be recognized using the fair
value method over a weighted average remaining life of
approximately 1.5 years.
During the year ended December 31, 2005, the Company
followed the provisions of SFAS No. 148,
“Accounting for Stock-Based Compensation —
Transition and Disclosure” (“SFAS 148”).
SFAS 148 amends SFAS No. 123, “Accounting
for Stock-Based Compensation” (“SFAS 123”),
to provide alternative methods of transition to
SFAS 123’s fair value method of accounting for
stock-based employee compensation. SFAS 148 also amends the
disclosure provisions of SFAS 123 to require disclosure in
the summary of significant accounting policies of the effects of
an entity’s accounting policy with respect to stock-based
employee compensation on reported net income. While
SFAS 148 did not amend SFAS 123 to require companies
to account for employee stock options using the fair value
method, as SFAS 123R did, the disclosure provisions of
SFAS 148 are applicable to all companies using the
stock-based employee compensation method of SFAS 123 or the
intrinsic value method of APB 25.
Pro forma information regarding net income (loss) applicable to
common stockholders is required under SFAS 123, as if the
Company has accounted for its stock options under the fair value
method. For purposes of pro forma disclosures, the estimated
fair value of the options is amortized to expense over the
options’ vesting period.
The following table illustrates the effect on net loss if the
Company had applied the fair value recognition provisions of
SFAS 123:
We recognize revenue on the sale of our products when the title
and risk of loss has passed to our customer, the sales price is
fixed or determinable and collectibility is reasonably assured,
which is generally upon shipment to the customer.
Other
Income
Under the Energy Policy Act of 2005, the Company receives a
$1.00 per gallon renewable diesel mixture tax credit for each
gallon of renewable diesel it sells. The renewable diesel
mixture tax credit is scheduled to expire at the end of 2009.
Since the Company currently owes no fuel excise tax, the
Internal Revenue Service makes a direct payment to the Company
for this credit. The Company has recognized $910,983, $1,777,077
and $0 related to the renewable diesel mixture tax credit for
the years ended December 31, 2007, 2006 and 2005,
respectively.
Other income of approximately $477,000 during the year ended
December 31, 2007 consisted primarily of grant monies
received in the amount of $400,000 and proceeds from the sale of
tax credits in the amount of $75,000.
Segment
Information
The Company operates as a single segment as defined by
SFAS No. 131, “Disclosures about Segments of an
Enterprise and Related Information.”The Company recorded
revenues in the years ended December 31, 2007, 2006 and
2005 from customers located in the U.S. geographic area.
Recent
Accounting Pronouncements
In September 2006, the FASB issued SFAS No. 157,
“Fair Value Measurements” (“SFAS 157”),
which defines fair value, establishes guidelines for measuring
fair value pursuant to generally accepted
accounting principles, and expands disclosures regarding fair
value measurements. In February 2008, the FASB issued FSB
157-2 which
delays the effective date of Statement 157 for one (1) year
for all nonfinancial assets and nonfinancial liabilities, except
those that are recognized or disclosed at fair value in the
financial statements on a recurring basis (at least annually).
SFAS 157 and
FSP 157-2
are effective for financial statements issued for fiscal years
beginning after November 15, 2007. Effective
January 1, 2008, the Company adopted
SFAS No. 157, for assets and liabilities measured at
fair value on a recurring basis. The adoption of SFAS 157
did not have an impact on the Company’s financial position
or operating results, but did expand certain disclosures.
In December 2007, the FASB issued SFAS No. 141
(Revised 2007), “Business Combinations”
(“SFAS 141R”), a replacement of FASB Statement
No. 141. SFAS 141R is effective for fiscal years
beginning on or after December 15, 2008 and applies to all
business combinations. SFAS 141R provides that, upon
initially obtaining control, an acquirer shall recognize 100% of
the fair values of acquired assets, including goodwill, and
assumed liabilities, with only limited exceptions, even if the
acquirer has not acquired 100% of its target. As a consequence,
the current step acquisition model will be eliminated.
Additionally, SFAS 141R changes current practice, in part,
as follows: (1) contingent consideration arrangements will
be recorded at fair value at the acquisition date and included
on that basis in the purchase price consideration;
(2) transaction costs will be expensed as incurred, rather
than capitalized as part of the purchase price;
(3) pre-acquisition contingencies, such as legal issues,
will generally have to be accounted for in purchase accounting
at fair value; and (4) in order to accrue for a
restructuring plan in purchase accounting, the requirements in
FASB Statement No. 146, “Accounting for Costs
Associated with Exit or Disposal Activities,” would have to
be met at the acquisition date. While there is no expected
impact to our consolidated financial statements on the
accounting for acquisitions completed prior to December 31,2008, the adoption of SFAS 141R on January 1, 2009
could materially change the accounting for business combinations
consummated subsequent to that date.
In February 2007, the FASB issued SFAS No. 159,
“The Fair Value Option for Financial Assets and Financial
Liabilities — Including an Amendment of
SFAS 115” (“SFAS 159”), which permits
but does not require us to measure financial instruments and
certain other items at fair value. Unrealized gains and losses
on items for which the fair value option has been elected are
reported in earnings. This statement is effective for financial
statements issued for fiscal years beginning after
November 15, 2007. The Company has not elected to adopt
this statement.
In December 2007, the FASB issued SFAS No. 160,
“Non-controlling Interests in Consolidated Financial
Statements — An Amendment of ARB No. 51”
(“SFAS 160”). SFAS 160 establishes new
accounting and reporting standards for the non-controlling
interest in a subsidiary and for the deconsolidation of a
subsidiary. Specifically, this statement requires the
recognition of a non-controlling interest (minority interest) as
equity in the consolidated financial statements and separate
from the parent’s equity. The amount of net income
attributable to the non-controlling interest will be included in
consolidated net income on the face of the income statement.
SFAS 160 clarifies that changes in a parent’s
ownership interest in a subsidiary that do not result in
deconsolidation are equity transactions if the parent retains
its controlling financial interest. In addition, this statement
requires that a parent recognize a gain or loss in net income
when a subsidiary is deconsolidated. Such gain or loss will be
measured using the fair value of the non-controlling equity
investment on the deconsolidation date. SFAS 160 also
includes expanded disclosure requirements regarding the
interests of the parent and its non-controlling interest.
SFAS 160 is effective for fiscal years, and interim periods
within those fiscal years, beginning on or after
December 15, 2008. Earlier adoption is prohibited. The
impact, if any, on the Company from the adoption of
SFAS 160 in 2009 will depend on the development of our
business at that time.
As of December 31, 2004, CWT and all subsidiaries was a
development stage company as defined in SFAS No. 7,
“Accounting and Reporting by Development Stage
Enterprises.” Through December 31, 2004, RES devoted
substantially all of its efforts to its formation, raising
capital, research and development, and product development.
Substantially all losses accumulated through December 31,2004 were considered to be a part of development stage
activities. In February 2005, RES began to operate its facility
for its intended purpose. Accordingly, the Company is not
classified as a development stage enterprise at
December 31, 2007, 2006 and 2005.
3.
Property, Plant
and Equipment, Net
Property, plant and equipment, at cost, consisted of the
following as of December 31:
2007
2006
Buildings and improvements
$
2,757,780
$
2,748,736
Tools and pumps
1,341,661
1,378,603
Machinery, including pollution control equipment, lab equipment
and instruments
14,008,168
12,529,660
Tanks and piping
11,693,658
10,816,907
Furniture, fixtures and office equipment
107,325
124,427
Computer hardware and software
462,350
456,594
Leasehold improvements
1,404,328
1,241,673
Transportation equipment
396,854
415,334
Construction in Progress
640,715
782,708
Total
32,812,839
30,494,642
Less: Accumulated depreciation and amortization
(6,187,016
)
(3,945,514
)
Total property and equipment
$
26,625,823
$
26,549,128
Depreciation and amortization
2,243,741
2,052,635
Depreciation and amortization expense was $2,243,741, $2,052,635
and $773,733 for the periods ended December 31, 2007, 2006
and 2005, respectively.
4.
Inventories
Inventories are stated at lower of cost or market and consist of
the following as of December 31:
2007
2006
Oil (at market)
$
421,301
$
241,906
Work in progress
11,148
10,574
Total Inventories
$
432,449
$
252,480
The market value of renewable diesel is determined by averaging
the unit sales price over the prior three operating months and
then evaluating the unit sales price with committed future sales
for reasonableness.
The cost of production is substantially greater than the market
value resulting in a lower of cost or market reserve. The lower
of cost or market reserves were approximately $8,044,000 and
$3,712,000 for the years ended December 31, 2007 and 2006,
respectively.
5.
Related Party
Transactions
Related party payments are as follows:
2007
2006
2005
Atlantis International Limited(A)
$
88,524
$
88,147
$
88,524
AB-CWT, LLC(B)
$
129,134
$
134,412
$
137,500
(A)
The Company paid rents and auto
expenses to Atlantis International Limited, which is 100% owned
by the Company’s Chief Executive Officer. Rent is for
CWT’s corporate headquarters in West Hempstead, New York
and is due on a month-to-month basis. Furthermore, in June 2005,
the Company advanced $125,000 to Atlantis. This advance was
repaid in full on July 11, 2005.
(B)
The Company paid for professional
services rendered and licensing fees to AB-CWT, which is owned
by the Company’s Chief Executive Officer and certain of its
Board members, for the use of TCP.
6.
Related Party
Receivables
The Company had a note receivable from Society for Energy and
Environmental Research (“SEER”), a related party and a
not-for-profit energy research and development corporation
funded by the United States Department of Energy, of $57,500
plus accrued interest which was advanced pursuant to a credit
agreement providing a line of credit of up to $100,000. The
credit agreement was extended to December 31, 2007 and
bears interest at 5% with all interest due and payable on the
maturity date. On December 31, 2007, the total amount due
was $71,700. Interest income for years ended December 31,2007, 2006 and 2005 amounted to $3,500, $3,400 and $3,500,
respectively.
During the year ended December 31, 2007, the Company
received grant monies from SEER in the amount of approximately
$400,000 and provided administrative and bookkeeping services in
the amount of $30,000 which assisted the Company in obtaining
several government grants. Certain directors of SEER are related
to certain directors of the Company.
The Company has fully reserved the note receivable plus accrued
interest and the receivables related to the administrative and
bookkeeping services, as collectibility is uncertain.
Prior to July 31, 2005, the Company provided technical
support services to the RES joint venture. Payments from RES
were included in other income in the amount of $268,500 for the
year ended December 31, 2005.
The Company accounts for income taxes under the provisions of
SFAS 109. Deferred tax assets and liabilities arise from
temporary differences between the tax basis of assets and
liabilities and their reported amounts in the consolidated
financial statements. The components of tax assets (liabilities)
are as follows:
Pursuant to SFAS 109, the Company recorded a valuation
allowance during the years ended December 31, 2007, 2006
and 2005 equal to its net deferred tax assets. The Company
believes that the valuation allowance is necessary as it is more
likely than not that the net deferred tax assets will not be
realized in the foreseeable future because of uncertainties
relating to future taxable income, in terms of both its timing
and its sufficiency, which would enable the Company to realize
the deferred tax assets.
As of December 31, 2007, 2006 and 2005, the Company had
federal, state and local net operating loss carryforwards of
approximately $90 million, $64 million and
$37 million, respectively. The tax loss carryforwards
expire through 2027, if not fully utilized by then. Utilization
is dependent on generating sufficient taxable income prior to
expiration of the tax loss carryforward.
The benefits (provisions) for income taxes were at rates
different from U.S. federal statutory rates for the
following reasons:
The acquisition of RES has been accounted for using the purchase
method of accounting in accordance with SFAS No. 141,
“Business Combinations,” and the resulting goodwill is
accounted for under SFAS 142, “Goodwill and other
Intangible Assets.”
The Company acquired these assets plus $2,000,000 in cash in
exchange for 978,689 shares of its common stock and a
warrant to purchase 327,488 shares of common stock, and
termination of a license agreement. The warrant was valued at
$11.79 per corresponding share using a Black-Scholes valuation
with the fair market value of the underlying shares at $22.89, a
strike price of $30.54 per share, a volatility of 64.45%, and a
time to maturity of five years. The aggregate purchase price was
approximately $26,252,400. Shown below is the final purchase
price allocation, which summarizes the fair value of the
acquired business at July 31, 2005, the date of acquisition:
Cash
$
2,058,000
Accounts receivable
7,000
Inventory
89,000
Prepaid expenses
34,000
Property, plant and equipment, net
11,561,000
Accounts payable
(415,000
)
Accrued expenses
(291,000
)
Long term liabilities
(463,000
)
Goodwill
13,672,400
Total net acquired assets
$
26,252,400
In December 2005, the Company had indicators of impairment, such
as inability to generate a sufficient revenue stream and
continued net losses. As such, in accordance with SFAS 142,
the Company tested for impairment the resulting goodwill within
RES and determined that the carrying amount of the goodwill was
in excess of its implied fair value. The Company then determined
that the goodwill was fully impaired and recorded an impairment
charge of $13,672,400.
The following unaudited pro forma consolidated financial
information for year ended December 31, 2005, gives effect
to the acquisition as if it had been consummated as of
January 1, 2005:
Revenue
$
177,000
Net loss
(38,950,000
)
The unaudited pro forma consolidated financial information is
presented for comparative purposes only and is not intended to
be indicative of the actual results that would have been
achieved had the transaction been consummated as of the dates
indicated above, nor does it purport to indicate results that
may be attained in the future.
9.
Investment in
RES
On December 4, 2000, two agreements were entered into with
ConAgra which formalized the development of TCP for the animal
and food processing waste segment. ConAgra committed to utilize
TCP to process the animal and food processing waste at
ConAgra’s facilities worldwide. A license fee of $2,250,000
was paid to RRC under the agreement. Simultaneously, CWT entered
into an exclusive joint venture arrangement to form RES
with CPC, as equal partners, to commercialize the use of TCP
under the license agreement with RRC for processing animal and
food processing waste globally. In July 2003, CPC assigned its
ownership interest in RES to CRF in conjunction with the sale of
CPC to Pilgrim’s Pride Corporation. In July 2005,
CRF’s 50% interest in RES, plus cash, was exchanged for
shares and a warrant to purchase CWT stock causing 100% of RES
to be owned by RRC.
The following represents summarized information as to assets,
liabilities and members’ equity of RES as of July 31,2005 and the operating results of RES for the seven-month period
ended July 31, 2005 (the most recent information available):
At December 31, 2007, certificates of deposit were placed
as security, in lieu of a bond, for potential environmental
expenses with the Commonwealth of Pennsylvania, Department of
Environmental Protection, Bureau of Land Recycling and Waste
Management in the amount of $156,000. The Company is unaware of
any potential environmental matters.
11.
Other
Assets
Other assets include costs for plan permits and engineering, and
the initial license fee for the Company’s operating
facility in the amount of $86,284, $493,891 and $422,641 as of
December 31, 2007, 2006 and 2005, respectively.
12.
Operating
Leases
The Company has an operating lease which expires August 2008 for
its facility in Philadelphia, Pennsylvania. In July 2008, the
lease was renewed and amended to expire August 31, 2010.
Rent expense approximated $76,000, $74,000 and $74,000 for the
years ended December 31, 2007, 2006 and 2005, respectively.
The Company leases land, office space and miscellaneous
equipment for the Carthage, Missouri operating facility under
several operating leases expiring at various dates through 2027.
Land
As part of the RES acquisition an additional 978,689 shares
of common stock and 327,488 warrants to purchase shares of
CWT’s common stock at $30.54 per share expiring July 2010
were issued to ConAgra in exchange for their 50% equity
investment in RES, $2.0 million in cash and the return of
certain license agreements.
In November 2005, by stockholder consent and prior Board
approval, the Company increased the authorized shares of common
stock of the Company to 10,500,000.
On April 25, 2006, the Board of Directors approved a
private placement of 611,259 shares of common stock to
existing stockholders at a purchase price of $15.42 per share.
Each stockholder was entitled to subscribe for one (1) new
share for every ten (10) shares held of record on
May 9, 2006. Through December 31, 2006, the Company
received $9,429,036 for subscriptions for 611,142 shares of
this offering.
On December 5, 2006, the Board of Directors approved a
private placement of 1,130,463 shares of common stock to
existing stockholders at a purchase price of $8.58 per share.
Each stockholder was entitled to subscribe for one (1) new
share for every six (6) shares held of record on
December 11, 2006. Through December 31, 2006, the
Company received $5,683,031 for subscriptions for
663,021 shares. Through December 31, 2007, the Company
received $9,687,288 for subscriptions for 1,130,185 shares
of this offering.
On June 28, 2007, the Board of Directors approved the
issuance of convertible promissory notes to three existing
investors for an aggregate of $1,050,000. The convertible
promissory notes were convertible into a number of shares of
fully paid common stock, preferred stock or other equity
interest of the Company equal to the outstanding principal based
on the fair market value of the equity interests issued on the
date of the conversion. The convertible promissory notes earned
interest at a rate of 8% per annum and were due and payable on
September 30, 2007. On July 23, 2007, the convertible
promissory notes were converted to 34,386 shares of common
stock and warrants to purchase up to 19,411 shares of
common stock with an exercise price of $30.54 per share. The
Company determined the values ascribed to the common stock and
warrants equated to $1,050,000 based on the below transaction.
The Company determined the fair value of the warrants using the
Black-Scholes option
pricing model with the following assumptions: a fair market
value of common stock of $23.58 per share, risk free interest of
4.8%, volatility of 64.2%, dividend yield of $0 and life of five
(5) years.
On July 23, 2007, the Board of Directors approved an
initial investment of $25,000,000 from an investment firm in
exchange for 818,713 shares of common stock and warrants to
purchase 462,194 shares of common stock at an exercise
price of $30.54 per share. The Company assumed a fair value of
the shares of our common stock to be $23.58 on July 23,2007 based on proceeds received from equity instruments
delivered. The Company determined the fair value of the warrants
using the Black-Scholes option pricing model with the following
assumptions: a fair market value of common stock of $23.58 per
share, risk free interest of 4.8%, volatility of 64.2%, dividend
yield of $0 and life of five (5) years. The Company
incurred $1.8 million of expenses related to this
investment. Concurrently, the promissory notes of the three
existing investors were converted to 34,386 shares of
common stock and 19,411 warrants.
In November 2007, by stockholder consent and prior Board
approval, the Company increased the authorized shares of common
stock to 17,500,000.
Series A
Preferred Stock
The Company issued, during 2002, Series A Preferred Stock,
$0.01 par value per share, of which 195,081 shares
were issued and outstanding. The Series A Preferred Stock
does not bear dividends. Each share of the Series A
Preferred Stock is currently and generally convertible into
2.33 shares of common stock, subject to adjustment of the
conversion rate, under certain standard structural anti-dilution
provisions as defined in the agreement. The Company has reserved
common shares sufficient to meet this potential conversion. The
holders of the Series A Preferred Stock have rights to vote
on all matters and are entitled to the number of votes equal to
the number of shares of common stock into which the
Series A Preferred Stock is convertible. The Investors are
entitled, but not required, to elect two directors of CWT, or
such greater number in the event that the number of directors
constituting the Board exceeds nine. In the event of a public
offering, the preferred shares are automatically converted into
common shares and the preferred investors are entitled to
registration rights upon the public offering. In the event of
any liquidation, dissolution or winding up of the Company, the
holders of the Series A Preferred Stock are entitled to be
paid in preference to any payment or distribution on any other
shares of capital stock, an amount equal to $25.63 per share,
plus 8% per annum commencing on the date of issuance, to the
extent of available funds and assets. The Series A
Preferred Stock is not redeemable and only has preference to
other classes of our capital stock in the event of liquidation.
The Company has reserved for issuance
(i) 455,189 shares of common stock for conversion of
the Series A Preferred Stock, (ii) 809,093 shares
of common stock upon exercise of the warrants and
(iii) 350,000 shares of common stock for potential
exercise of options under its 2002 stock plan.
14.
Stock
Awards/Options
Prior to adopting a formal stock option plan, the Company
granted options to purchase shares of common stock to certain
individuals. In October 2002, the Company adopted the Changing
World Technologies, Inc. 2002 Stock Plan (the “Plan”).
Under the Plan, the Company may award shares or grant options to
purchase shares as an additional incentive to employees,
directors and consultants of the Company or its affiliates. The
Plan authorized the issuance of an aggregate of
350,000 shares of common stock pursuant to awards or upon
the exercise of options or other rights. The Plan is
administered by the Board of Directors, or at its election, a
committee appointed by the Board of
Directors. Options generally are granted with vesting periods of
zero (0) to four (4) years. Options may be granted for
a term not to exceed ten (10) years from the date of grant
and are subject to exercisability provisions as determined by
the Board of Directors in its sole discretion.
The following is a summary of the stock option plans for the
years ended December 31, 2007, 2006 and 2005:
The aggregate intrinsic value of stock options exercised during
the years ended December 31, 2007, 2006 and 2005, including
the noncash transactions was $26,460, $242,978 and $2,313,
respectively. The aggregate intrinsic value of options both
outstanding and exercisable at December 31, 2007 is
approximately $575,361.
The weighted-average fair value of options granted was $17.79,
$26.46 and $17.13 for the years ended December 31, 2007,
2006 and 2005, respectively.
Additional information regarding exercise price ranges of
options outstanding at December 31, 2007:
Options Outstanding
Weighted-
Weighted-
Average
Average
Weighted-
Contractual
Exercise
Number of
Average
Life
Number of
Price of
Exercise
Options
Exercise
Remaining
Options
Exercisable
Price Range
Outstanding
Prices
(Years)
Exercisable
Options
$7.14
- $21.42
27,522
$13.38
1.11
27,522
$13.38
21.42
- 32.13
13,990
23.16
5.31
13,990
23.16
32.13
- 42.84
47,145
34.32
8.49
18,224
34.38
42.84
- 142.86
24,500
108.15
0.50
24,500
108.15
113,157
43.83
4.57
84,236
47.10
15.
Purchase
Commitments
On May 10, 2005, RES entered into an agreement with CFP
whereby RES would purchase certain by-products from CFP’s
Carthage, Missouri facility. This contract was subsequently
assigned to Butterball, LLC in October 2006. RES agreed to
purchase all of said by-products at
agreed-upon
prices. The agreement has a term of three (3) years,
expiring May 2008. A new agreement with Butterball, LLC
commenced in May 2008 and expires in May 2010 with a favorable
discount on the gross purchase price. RES paid $1,717,000,
$788,000 and $1,318,000 under the agreement in the years ended
December 31, 2007, 2006 and 2005, respectively.
16.
Employee Benefit
Plan
The Company has a 401(k) plan, which covers all nonunion
employees who are at least age 18. Under the plan, at the
Company’s discretion, the Company has matched a percentage
of a participant’s compensation or a dollar amount. The
Company’s contributions were $104,200, $51,800 and $21,400
for the years ended December 31, 2007, 2006 and 2005,
respectively.
17.
Commitments and
Contingencies
Pursuant to a settlement agreement with a former employee dated
July 17, 2002, the Company and AB-CWT, a related party, are
jointly and severally liable to pay $10,000 per month for the
duration of the last to expire of related patents licensed to
RRC. AB-CWT has acknowledged that it is the primary obligor
under that settlement. AB-CWT has made all payments under this
settlement and has stated its intention to continue to make the
payments required under the settlement. However, since CWT and
its subsidiaries currently are the principal source of revenue
for AB-CWT, CWT has determined that it should record a
liability. The original liability recorded by the Company
amounted to approximately $530,000. As of December 31,2007, the Company has a liability of approximately $437,000
recorded. As AB-CWT makes the required settlement payments, CWT
will record the reversal of its prior charge. The Company has
reversed $27,835, $22,827 and $34,045 for the years ended
December 31, 2007, 2006 and 2005, respectively.
The Company is involved in a dispute with a mechanical
contractor that participated in the construction of the
Company’s Carthage facility. The Company has filed suit
against the contractor and is seeking damages in excess of
$5,000,000. The Company has disputed liabilities of
approximately $1,149,000 to this contractor incurred through
December 31, 2005 included in long-term liabilities as of
December 31, 2007. The contractor has filed a countersuit
seeking amounts in excess of $5,000,000 from the Company. Should
the Company be found not liable for these liabilities in a
future period, the Company will record other income in that
period. The outcome of this dispute cannot be determined at this
time, but the Company believes that this matter will be settled
favorably to the Company and will not have a material adverse
affect on the financial position of the Company.
On January 11, 2006, the Attorney General of the State of
Missouri filed an action against us in the Circuit Court of
Jasper County, Missouri seeking preliminary and permanent
injunctions and civil penalties for alleged violations of
Missouri’s odor standard at our Carthage facility and for
alleged violations of our state air permit. The case was settled
by paying a $175,000 fine. The Company paid $100,000 of the fine
and the remaining $75,000 was suspended for two years unless the
Company received additional notices of violation under the
Missouri odor standards. The Company agreed to pay an additional
$25,000 per charged violation. On November 15, 2006, the
Company received a notice of excess emission that was
subsequently upgraded to a notice of violation. On
December 11, 2006, the Company agreed to pay the first of
the suspended violations. On June 5, 2007, a resident of
Carthage, Missouri, filed a petition in the Circuit Court of
Jasper County, Missouri on behalf of herself and others
similarly situated. Plaintiff alleges that the Company’s
facility in Carthage creates a nuisance. Plaintiff seeks
compensatory damages, punitive damages, injunctive relief and
attorneys’ fees and costs. The outcome of this dispute
cannot be determined at this time, but the Company believes that
this matter will be resolved favorably to the Company and will
not have a material adverse affect on the financial position of
the Company.
From time to time, the Company is subject to litigation, claims
and administrative proceedings resulting from operations of its
business. In the opinion of management, no such matters are
present that will have a material adverse affect on the
financial position of CWT or subsidiaries. The Company believes
that none of these proceedings will have a material adverse
effect on the Company’s operating results or cash flows.
18.
Earnings (Loss)
Per Share
Basic earnings (loss) per share represents the income (loss)
available to common stockholders divided by the weighted average
number of common shares outstanding during the measurement
period. Diluted earnings per share represents the income (loss)
available to common stockholders divided by the weighted average
number of common shares outstanding during the measurement
period while also giving effect to all potentially dilutive
common shares that were outstanding during the period. During
the years ended December 31, 2007, 2006 and 2005, the
Company incurred net losses of $19,905,316, $21,758,881 and
$31,746,607, respectively. Therefore, all of our potentially
convertible preferred stock, warrants and options were deemed
anti-dilutive and excluded from our computation of diluted loss
per share.
The following table summarizes the potential number of
convertible preferred stock, warrants and options which are
excluded from the computation of diluted net loss per share.
During the nine months ended September 30, 2008, management
identified certain property, plant and equipment which was no
longer being utilized due to process improvements implemented
during 2008. As a result, the Company recorded a charge for the
remaining net book value of the assets of approximately
$1.2 million during the nine months ended
September 30, 2008.
On July 2, 2008, the Board of Directors approved a private
placement of 876,722 shares of common stock at a purchase
price of $8.58 per share. Each current shareholder was granted
the right to subscribe for one (1) new share for every ten
(10) shares held of record on July 2, 2008, as well as
the right to purchase such additional shares as may be available
from unsubscribed shares in proportion to their initial
participation in this offering. On August 8, 2008, the
Company raised approximately $7.5 million and issued
872,567 shares of common stock in this rights offering.
On August 11, 2008, the Company issued options to purchase
210,467 shares of common stock of which options to purchase
110,833 shares of common stock are performance based. The
Company determined the fair value of the stock options using the
Black-Scholes Option pricing model with the following
assumptions: fair market value of common stock of $26.25,
exercise price of $30.54, risk free interest of 3.27%,
volatility of 65%, dividend yield of $0 and life of five
(5) years. The fair market value was estimated using a
discounted cash flow approach that used recent historical and
projected cash flow, comparables to similar companies and
certain discount factors based on comparable companies. The
non-performance based stock options vest immediately upon
issuance. As such, the Company has recorded an expense of
approximately $1.4 million during the nine months ended
September 30, 2008.
On October 3, 2008, the Emergency Economic Stabilization
Act of 2008 was approved by the U.S. Senate and House of
Representatives and signed into effect by the President of the
United States of America. As a result, cash balances deposited
with local banking institutions are insured by the Federal
Deposit Insurance Corporation up to $250,000 per financial
institution and the renewable diesel mixture tax credit was
extended through December 31, 2009.
On November 17, 2008, the Company’s board of directors
declared a 7 to 1 stock split for shareholders of
record as of that date and increased the number of authorized
shares of common stock to 150,000,000. On January 8, 2009, the
Company’s board of directors declared a subsequent
1 to 3 reverse stock split for shareholders of record
as of that date. All share and per share information included in
these consolidated financial statements have been adjusted
retroactively to reflect the 7 to 1 stock split and
the subsequent 1 to 3 reverse stock split for all
periods presented.
In December 2008, the Company completed a secured debt and
warrant financing for aggregate net proceeds of
$2.0 million whereby the Company issued promissory notes in
an aggregate principal amount of $2.0 million that will
mature on the earlier to occur of March 31, 2009 or the
consummation of the Company’s initial public offering and
warrants to purchase an aggregate of 116,667 shares of the
Company’s common stock at an exercise price of $30.54 per
share. The promissory notes are fully secured by all of the
Company’s assets and have an interest rate of 18% per
annum. The warrants are exercisable beginning January 2010 and
expire in December 2013. The Company determined the fair value
of the warrants, $653,333, using the Black-Scholes
option-pricing model with the following assumptions: a fair
market value of common stock of $11.00 per share, exercise price
of $30.54 per share, risk free interest rate of 1.47%,
volatility of 88.13%, dividend yield of $0 and life of five
years. The promissory notes will be recorded at their relative
fair value of $1.5 million and the warrants will be
recorded as additional paid in capital at their relative fair
value of $492,462.
In December 2008, the Company issued a promissory note to Weil,
Gotshal & Manges LLP in the principal amount of
$1.0 million in lieu of payment of accrued legal fees and
expenses. The promissory note issued to Weil, Gotshal &
Manges LLP has an interest rate of 3% per annum and will mature
on the earlier to occur of March 31, 2009 or the
consummation of the Company’s initial public offering.
On January 14, 2009, the Company’s Board of Directors
adopted a formal stock option plan, the 2009 Equity Incentive
Plan (the “Plan”), to be effective as of
January 14, 2009, pending stockholder approval. Under the
Plan, the Company may award shares or grant options to purchase
shares as an additional incentive to employees, directors and
consultants of the Company or its affiliates. The Plan
authorized the issuance of an aggregate of 1,000,000 shares
of common stock pursuant to awards or upon the exercise of
options or other rights. The Plan is administered by the
Compensation Committee of the Board of Directors, or at its
election, a committee appointed by the Board of Directors.
Options may be granted for a term not to exceed ten
(10) years from the date of grant and are subject to
exercisability provisions as determined by the Compensation
Committee.
Preferred stock, $0.01 par value: authorized
445,081 shares; 195,081 shares issued and outstanding
as of September 30, 2008 and December 31, 2007, with a
liquidation preference of $7,891,154 as of September 30,2008
Organization and
Summary of Significant Accounting Policies
Changing World Technologies, Inc. (the “Company” or
“CWT”) was incorporated in August 1997, as a holding
company for the purpose of providing funding and management
expertise to its wholly-owned subsidiaries that are responsible
for bringing specific emerging technologies to the marketplace.
The Company currently is headquartered in West Hempstead, New
York.
Resource Recovery Corporation (“RRC”) is a
wholly-owned subsidiary of the Company that was formed for the
purpose of marketing a technology known as Thermal Conversion
Process (“TCP”). TCP can convert a broad range of
organic wastes, including animal and food processing waste, trap
and low-value greases, mixed plastics, rubber and foam, into
renewable diesel and fertilizers. TCP emulates the earth’s
natural geological and geothermal processes that transform
organic material into fuels through the application of water,
heat and pressure in various stages. TCP is not dependent on
enzymes or bacteria, and the actual combined reaction times are
less than two hours for the key process steps. RRC is the
exclusive, worldwide licensee under various U.S. and
foreign patents and pending applications of AB-CWT, LLC
(“AB-CWT”), a related party, a subset of which are
directed to TCP technology as currently implemented.
In December 2000, RRC entered into a license agreement with
ConAgra Foods Inc. (“ConAgra”) which formalized the
development of TCP for the animal and food processing waste
segment. ConAgra committed to utilize TCP to process the animal
and food processing waste products at ConAgra’s facilities
worldwide. A license fee of $2.3 million was paid to RRC
under the agreement for the worldwide license. Simultaneously,
CWT entered into an exclusive joint venture arrangement to
form Renewable Environmental Solutions, LLC.
(“RES”) with ConAgra Poultry Company (“CPC”)
as equal partners, to commercialize the use of TCP under the
license agreement with RRC, for processing animal and food
processing waste globally. In July 2003, CPC assigned its
ownership interest in RES to ConAgra Foods Refrigerated Foods
Co., Inc. (“CRF”) in conjunction with the sale of CPC
to Pilgrim’s Pride Corporation. In July 2005, CRF’s
50% interest in RES, plus cash in the amount of
$2.0 million was exchanged for 978,689 shares of the
Company’s common stock and a warrant to purchase
327,488 shares of the Company’s common stock. As a
result of this exchange, RES became a wholly-owned subsidiary
and the licensing agreement was terminated.
RES operates an approximate 250
ton-per-day
facility, located in Carthage, Missouri, that converts animal
and food processing waste into renewable diesel and fertilizers.
The principal feedstock is supplied by Butterball, LLC under a
contract which expires in May 2010. The Company intends to
expand its use of TCP through the development and construction
of additional TCP facilities.
The Company has prepared its consolidated financial statements
under the assumption that it is a going concern. The Company has
devoted substantially all of its cash resources to the operation
of its facility in Carthage, Missouri, research and development,
and general and administrative expenses. As a result, the
Company has incurred an accumulated deficit of approximately
$117.8 million and $99.0 million as of
September 30, 2008 and December 31, 2007,
respectively, and expects to incur continuing net operating
losses. The Company’s ongoing losses raise substantial
doubt about its ability to continue as a going concern. The
consolidated financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
The Company has financed its operations through proceeds from
the sales of common and preferred equity securities, issuance of
convertible debt, revenue and renewable diesel mixture tax
credit from the sale of renewable diesel. Based upon the
projected spending levels for the Company,
the Company will require additional funding for 2008. As a
result, the Company intends to monitor its liquidity position
and to continue to actively pursue fund-raising possibilities
through the sale of its equity securities. If the Company is
unsuccessful in its efforts to raise additional funds through
the sale of its equity securities, the incurrence of debt,
contractual arrangement or operations, it may be required to
significantly reduce or curtail its research and development
activities and other operations.
The Company will require, over the long-term, substantial new
funding to pursue new facility construction, research and
development and sales and marketing of its renewable diesel and
beginning in the second quarter of 2008, the sale of
fertilizers. The amount of the Company’s future capital
requirements will depend on numerous factors, including the
progress of its research and development programs, the cost and
timing of new facility construction, the success of its efforts
to commercialize its renewable diesel and fertilizers, the costs
associated with protecting patents and other proprietary rights,
the development of marketing and sales capabilities and the
availability of third-party funding. There can be no assurance
that such funding will be available at all or on terms
acceptable to the Company.
Unaudited
Interim Financial Information
The accompanying interim unaudited consolidated financial
statements have been prepared in accordance with the rules and
regulations of the Securities and Exchange Commission.
Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles
in the United States of America (“US GAAP”) for
complete financial statements. In the opinion of management, the
accompanying interim unaudited consolidated financial statements
contain all adjustments (consisting of normal recurring
adjustments) considered necessary for a fair presentation of the
results of operations for the interim periods. The results of
operations for the nine months ended September 30, 2008 are
not necessarily indicative of the results that may be expected
for the year ending December 31, 2008. These interim
unaudited consolidated financial statements should be read in
conjunction with the audited financial statements and the notes
thereto for the years ended December 31, 2007.
Estimates
The preparation of financial statements in conformity with
US GAAP requires management to make estimates and
assumptions that affect the reported amount of assets and
liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements, and amounts of income
and expenses during the reporting period. Actual results could
differ from those estimates.
Concentration
of Credit Risk
The Company invests excess cash in short-term money market
instruments through several high quality financial institutions.
The balance in these accounts at September 30, 2008 was
$5,364,000. At September 30, 2008, other cash balances were
deposited with local banking institutions and are insured by the
Federal Deposit Insurance Corporation up to $100,000 per
financial institution. See Note 11.
In the nine months ended September 30, 2008, the Company
has sales to three customers which accounted for 78.1%, 14.3%
and 7.6% of sales, of which one customer represented 92.5% of
total accounts receivable as of September 30, 2008.
In the nine months ended September 30, 2007, the Company
had sales to two customers which accounted for approximately
69.3% and 26.7% of sales, of which one of the customers
represented 95.0% of total accounts receivable as of
September 30, 2007.
Long- term liabilities consist of obligations which are expected
to be settled in a period greater than one (1) year and
consist of a settlement agreement with a former employee and a
dispute with a mechanical contractor in the amounts of
approximately $333,000 and $1,149,000, respectively, for the
nine months ended September 30, 2008. See Note 7.
Stock-Based
Compensation
The Company accounts for stock-based compensation in accordance
with Statement of Financial Accounting Standards, or SFAS,
No. 123(R) “Share-Based Payment,”
(“SFAS 123R”). Under SFAS 123(R), the
Company is required to record the fair value of stock-based
compensation awards as an expense in the financial statements
and that such cost be measured at the fair value of the award.
In order to determine the fair value of stock options on the
date of grant, the Company utilizes the Black-Scholes
option-pricing model. Inherent in this model are assumptions
related to expected stock-price volatility, option life,
risk-free interest rate and dividend yield. While the risk-free
interest rate and dividend yield are less subjective
assumptions, typically based on factual data derived from public
sources, the expected stock-price volatility and option life
assumptions require a greater level of judgment which makes them
critical accounting estimates. The Company uses an expected
stock-price volatility assumption which is primarily based on
the average implied volatility of the stock of a group of
comparable alternative energy companies, whose stocks are
publicly traded.
For the nine months ended September 30, 2008 and 2007, no
excess tax benefits were recognized.
The following table sets forth the amount of expense related to
stock-based payment arrangements included in specific line items
in the accompanying consolidated statement of operations for:
Prior to adopting a formal stock option plan, the Company
granted options to purchase shares of common stock to certain
individuals. In October 2002, the Company adopted the Changing
World Technologies, Inc. 2002 Stock Plan (the “Plan”).
Under the Plan, the Company may award shares or grant options to
purchase shares as an additional incentive to employees,
directors and consultants of the Company or its affiliates. The
Plan authorized the issuance of an aggregate of
350,000 shares of common stock pursuant to awards or upon
the exercise of options or other rights. The Plan is
administered by the Board of Directors, or at its election, a
committee appointed by the Board of Directors. Options generally
are granted with vesting periods of zero (0) to four (4) years.
Options may be granted for a term not to exceed ten (10) years
from the date of grant and are subject to exercisability
provisions as determined by the Board of Directors in its sole
discretion.
On August 11, 2008, the Company issued options to purchase
210,466 shares of common stock of which options to purchase
110,833 shares of common stock are performance based. The
Company determined the fair value of the stock options using the
Black-Scholes Option pricing model with the following
assumptions: fair market value of common stock of $26.25,
exercise price of $30.54, risk free interest of 3.27%,
volatility of 65%, dividend yield of $0 and life of five
(5) years. The fair market value of common shares was
determined using a discounted cash flow approach that used
recent historical and projected cash flow, comparables to
similar companies and certain discount factors based on
comparable companies. The non-performance based stock options
vest immediately upon issuance. As such, the Company has
recorded an expense of approximately $1.4 million during
the nine months ended September 30, 2008.
The following is a summary of the stock option plans for the
nine month period ended September 30, 2008:
As of September 30, 2008, there was $123,647 of total
unrecognized compensation cost related to nonvested, stock-based
compensation granted under the Company’s stock option plan
which will be recognized over a weighted average remaining life
of approximately 1.07 years.
There were no stock options exercised during the nine months
ended September 30, 2008 and 2007. The aggregate intrinsic
value of options both outstanding and exercisable at
September 30, 2008 and at December 31, 2007 is
approximately $71,064 and $575,000, respectively.
Additional information regarding exercise price ranges of
options outstanding at September 30, 2008:
In May 2008, the Financial Accounting Standards Board
(“FASB”) issued SFAS No. 162, “The
Hierarchy of Generally Accepted Accounting Principles”
(“SFAS No. 162”). SFAS No. 162 is
intended to improve financial reporting by identifying a
consistent framework, or hierarchy, for selecting accounting
principles to be used in preparing financial statements that are
presented in conformity with generally accepted accounting
principles. SFAS No. 162 will become effective
60 days following the SEC’s approval of the Public
Company Accounting Oversight Board amendments to AU
Section 411, “The Meaning of Present Fairly in
Conformity With Generally Accepted Accounting Principles.”The Company does not anticipate the adoption of
SFAS No. 162 will have a material impact on its
results of operations, cash flows or financial condition.
On April 25, 2008, the FASB issued FASB Staff Position
(“FSP”)
FAS 142-3,
“Determination of the Useful Life of Intangible
Assets.” This FSP amends the factors that should be
considered in developing renewal or extension assumptions used
to determine the useful life of a recognized intangible asset
under SFAS No. 142, “Goodwill and Other
Intangible Assets” (“SFAS 142”). The intent
of this FSP is to improve the consistency between the useful
life of a recognized intangible asset under SFAS 142 and
the period of expected cash flows used to measure the fair value
of the asset under SFAS No. 141 (Revised 2007),
“Business Combinations,” and other U.S. GAAP.
This FSP is effective for financial statements issued for fiscal
years beginning after December 15, 2008, and interim
periods within those fiscal years. Early adoption is prohibited.
The Company is currently evaluating the impact, if any, that
this FSP will have on the Company’s results of operations,
financial position or cash flows.
In December 2007, the FASB issued SFAS No. 141
(Revised 2007), “Business Combinations”
(“SFAS 141R”), a replacement of FASB Statement
No. 141. SFAS 141R is effective for fiscal years
beginning on or after December 15, 2008 and applies to all
business combinations. SFAS 141R provides that, upon
initially obtaining control, an acquirer shall recognize 100% of
the fair values of acquired assets, including goodwill and
assumed liabilities, with only limited exceptions, even if the
acquirer has not acquired 100% of its target. As a consequence,
the current step acquisition model will be eliminated.
Additionally, SFAS 141R changes current practice, in part,
as follows: (1) contingent consideration arrangements will
be recorded at fair value at the acquisition date and included
on that basis in the purchase price consideration;
(2) transaction costs will be expensed as incurred, rather
than capitalized as part of the purchase price;
(3) pre-acquisition contingencies, such as legal issues,
will generally have to be accounted for in purchase accounting
at fair value; and (4) in order to accrue for a
restructuring plan in purchase accounting, the requirements in
FASB Statement No. 146, “Accounting for Costs
Associated with Exit or Disposal Activities,” would have to
be met at the acquisition date. While there is no expected
impact to our consolidated financial statements on the
accounting for acquisitions completed prior to December 31,2008, the adoption of SFAS 141R on January 1, 2009
could materially change the accounting for business combinations
consummated subsequent to that date.
In December 2007, the FASB issued SFAS No. 160,
“Non-controlling Interests in Consolidated Financial
Statements — An Amendment of ARB No. 51”
(“SFAS 160”). SFAS 160 establishes
new accounting and reporting standards for the non-controlling
interest in a subsidiary and for the deconsolidation of a
subsidiary. Specifically, this statement requires the
recognition of a non-controlling interest (minority interest) as
equity in the consolidated financial statements and separate
from the parent’s equity. The amount of net income
attributable to the non-controlling interest will be included in
consolidated net income on the face of the income statement.
SFAS 160 clarifies that
changes in a parent’s ownership interest in a subsidiary
that do not result in deconsolidation are equity transactions if
the parent retains its controlling financial interest. In
addition, this statement requires that a parent recognize a gain
or loss in net income when a subsidiary is deconsolidated. Such
gain or loss will be measured using the fair value of the
non-controlling equity investment on the deconsolidation date.
SFAS 160 also includes expanded disclosure requirements
regarding the interests of the parent and its non-controlling
interest. SFAS 160 is effective for fiscal years, and
interim periods within those fiscal years, beginning on or after
December 15, 2008. Earlier adoption is prohibited. The
impact, if any, to the company from the adoption of SFAS in 2009
will depend on the development of our business at that time.
2.
Fair Value of
Financial Instruments
Effective January 1, 2008, the Company adopted
SFAS No. 157, “Fair Value Measurements”
(“SFAS 157”), for assets and liabilities measured
at fair value on a recurring basis. SFAS 157 establishes a
common definition for fair value to be applied to existing
generally accepted accounting principles that require the use of
fair value measurements, establishes a framework for measuring
fair value and expands disclosure about such fair value
measurements. The adoption of SFAS 157 did not have an
impact on the Company’s financial position or operating
results, but did expand certain disclosures.
SFAS 157 defines fair value as the price that would be
received to sell an asset or paid to transfer a liability in an
orderly transaction between market participants at the
measurement date. Additionally, SFAS 157 requires the use
of valuation techniques that maximize the use of observable
inputs and minimize the use of unobservable inputs. These inputs
are prioritized below:
Level 1:
Observable inputs such as quoted market prices in active markets
for identical assets or liabilities
Level 2:
Observable market-based inputs or unobservable inputs that are
corroborated by market data
Level 3:
Unobservable inputs for which there is little or no market data,
which require the use of the reporting entity’s own
assumptions.
Cash and cash equivalents / restricted cash of
approximately $3,733,000 and $156,000 respectively, include
money market securities and commercial paper that are considered
to be highly liquid and easily tradable as of September 30,2008. These securities are valued using inputs observable in
active markets for identical securities and are therefore
classified as Level 1 within our fair value hierarchy.
In addition, SFAS No. 159, “The Fair Value Option
for Financial Assets and Financial Liabilities,” was
effective for January 1, 2008. SFAS 159 expands
opportunities to use fair value measurements in financial
reporting and permits entities to choose to measure many
financial instruments and certain other items at fair value. The
Company did not elect the fair value options for any of its
qualifying financial instruments.
3.
Write-off of
Long-Lived Assets
During the nine months ended September 30, 2008, management
identified certain property, plant and equipment which was no
longer being utilized due to process improvements implemented
during 2008. As such, the Company recorded a charge for the
remaining net book value of the assets of approximately
$1.2 million during the nine months ended
September 30, 2008.
4.
Inventories
Inventories are stated at lower of cost or market and consist of
the following:
The market value of renewable diesel oil is determined by
averaging the unit sales price over the prior three operating
months and then evaluating the unit sales price with committed
future sales for reasonableness.
The concentrate fertilizer inventory is also recorded at net
realizable value and is immaterial.
The cost of production is substantially greater than the market
value resulting in a lower of cost or market reserve. The lower
of cost or market reserves were approximately $11,715,000 and
$8,044,000 as of September 30, 2008 and December 31,2007, respectively.
The Company paid rent and auto
expenses to Atlantis International Limited, which is 100% owned
by the Company’s Chief Executive Officer. Rent is for
CWT’s corporate headquarters in West Hempstead, New York
and is due on a month-to-month basis.
(B)
The Company paid for professional
services rendered and licensing fees to AB-CWT, which is owned
by the Company’s Chief Executive Officer and certain of its
Board members, for the use of TCP.
6.
Related Party
Receivable
The Company had a note receivable from a related party in the
amount of $57,500 plus accrued interest which was advanced
pursuant to a credit agreement providing a line of credit of up
to $100,000. The credit agreement was extended to
December 31, 2007 and bears interest at 5% with all
interest due and payable on the maturity date. On
December 31, 2007, the total amount due was $71,700.
Interest income for the nine months ended September 30,2008 and 2007 amounted to $0 and $2,617, respectively. The
Company has fully reserved for this related party receivable
during the nine months ended September 30, 2007, as
collectibility is uncertain.
7.
Commitments and
Contingencies
Pursuant to a settlement agreement with a former employee dated
July 17, 2002, the Company and AB-CWT, a related party, are
jointly and severally liable to pay $10,000 per month for
the duration of the last to expire of related patents licensed
to CWT. AB-CWT has acknowledged that it is the primary obligor
under that settlement. AB-CWT has made all payments under this
settlement and has stated its intention to continue to make the
payments required under the settlement. However, since CWT and
its subsidiaries are currently the principle source of revenue
for AB-CWT, CWT has determined that it should record a
liability. The original liability recorded by the Company
amounted to approximately $530,000. As of September 30,2008, the Company has a liability of approximately $333,000
recorded. As AB-CWT makes the required settlement payments, CWT
will record the reversal of its prior charge. The Company has
reversed $112,226 and $20,350 for the nine months ended
September 30, 2008 and 2007, respectively.
The Company is involved in a dispute with a mechanical
contractor that participated in the construction of the
Company’s Carthage facility. The Company has filed suit
against the contractor and is seeking damages in excess of
$5,000,000. The Company has disputed liabilities of
approximately $1,149,000 to this contractor incurred through
December 31, 2005 included in long-term liabilities as of
September 30, 2008. The contractor has filed a countersuit
seeking amounts in excess of $5,000,000 from the Company. Should
the Company be found not liable for these liabilities in a
future period, the Company will record other income in that
period. The outcome of this dispute cannot be determined at this
time, but the Company believes that this matter will be settled
favorably to the Company and will not have a material adverse
affect on the financial position of the Company.
On January 11, 2006, the Attorney General of the State of
Missouri filed an action against us in the Circuit Court of
Jasper County, Missouri seeking preliminary and permanent
injunctions and civil penalties for alleged violations of
Missouri’s odor standard at our Carthage facility and for
alleged violations of our state air permit. The case was settled
by paying a $175,000 fine. The Company paid $100,000 of the fine
and the remaining $75,000 was suspended for two years unless the
company received additional notices of violation under the
Missouri odor standards. The Company agreed to pay an additional
$25,000 per charged violation. On November 15, 2006 the
Company received a notice of excess emission that was
subsequently upgraded to a notice of violation. On
December 11, 2006, the Company agreed to pay the first of
the suspended violations.
On June 5, 2007, a resident of Carthage, Missouri, filed a
petition in the Circuit Court of Jasper County, Missouri on
behalf of herself and others similarly situated. Plaintiff
alleges that the Company’s plant in Carthage creates a
nuisance. Plaintiff seeks compensatory damages, punitive
damages, injunctive relief and attorneys’ fees and costs.
In the opinion of management, this legal issue will be resolved
in the near future without significant cost. The outcome of this
dispute cannot be determined at this time, but the Company
believes that this matter will be settled favorably to the
Company and will not have a material adverse effect on the
financial position, operating results and cash flow of the
Company.
From time to time, the Company is subject to litigation, claims
and administrative proceedings resulting from operations of its
business. In the opinion of management, no such matters are
present that will have a material adverse affect on the
financial position of CWT or its subsidiaries. The Company
believes that none of these proceedings will have a material
adverse effect on the Company’s operating results or cash
flow.
8.
Earnings (loss)
Per Share
Basic earnings (loss) per share represents the income (loss)
available to common stockholders divided by the weighted average
number of common shares outstanding during the measurement
period. Diluted earnings per share represents the income
available to common stockholders divided by the weighted average
number of common shares outstanding during the measurement
period while also giving effect to all potentially dilutive
common shares that were
outstanding during the period. During the nine months ended
September 30, 2008 and 2007, we incurred net losses.
Therefore, all of our potentially convertible preferred stock,
warrants and options were deemed anti-dilutive and excluded from
our computation of diluted loss per share.
The following table summarizes the potential number of
convertible preferred stock, warrants and options which are
excluded from the computation of diluted net loss per share.
On July 2, 2008, the Board of Directors approved a private
placement of 876,722 shares of common stock at a purchase
price of $8.58 per share. Each current shareholder was granted
the right to subscribe for one (1) new share for every ten
(10) shares held of record on July 2, 2008, as well as
the right to purchase such additional shares as may be available
from unsubscribed shares in proportion to their initial
participation in this offering. On August 8, 2008, the
Company raised approximately $7.5 million and issued
872,569 shares of common stock in this rights offering.
10.
Purchase
Commitments
On May 10, 2005, RES entered into an agreement with ConAgra
Foods Packaged Food Company, Inc. (“CFP”) whereby RES
would purchase certain by- products from CFP’s Carthage,
Missouri facility. This contract was subsequently assigned to
Butterball, LLC in October 2006. RES agreed to purchase all of
said by- products at agreed- upon prices. The agreement had a
term of three (3) years and expired in May 2008. A new
agreement with Butterball, LLC commenced in May 2008 and expires
in May 2010 with a favorable discount on the gross purchase
price. RES paid $2,705,154 and $1,076,741 under the agreement
during the nine months ended September 30, 2008 and 2007,
respectively.
11.
Subsequent
Events
On October 3, 2008, the Emergency Economic Stabilization
Act of 2008 was approved by the U.S. Senate and House of
Representatives and signed into effect by the President of the
United States of America. As a result, cash balances deposited
with local banking institutions are insured by the Federal
Deposit Insurance Corporation up to $250,000 per financial
institution and the renewable diesel mixture tax credit was
extended through December 31, 2009.
On November 17, 2008, the Company’s board of directors
declared a 7 to 1 stock split for shareholders of
record as of that date and increased the number of authorized
shares of common stock to 150,000,000. On January 8, 2009,
the Company’s board of directors declared a subsequent 1 to
3 reverse stock split for shareholders of record as of that
date. All share and per share information included in these
consolidated financial statements have been adjusted
retroactively to reflect the 7 to 1 stock split and the
subsequent 1 to 3 reverse stock split for all periods presented.
In December 2008, the Company completed a secured debt and
warrant financing for aggregate net proceeds of
$2.0 million whereby the Company issued promissory notes in
an aggregate principal amount of $2.0 million that will
mature on the earlier to occur of March 31, 2009 or the
consummation of the Company’s initial public offering and
warrants to purchase an aggregate of 116,667 shares of the
Company’s common stock at an exercise price of $30.54 per
share. The promissory notes are fully secured by all of the
Company’s assets and have an interest rate of 18%
per annum. The warrants are exercisable beginning January 2010
and expire in December 2013. The Company determined the fair
value of the warrants, $653,333, using the Black-Scholes
option-pricing model with the following assumptions: a fair
market value of common stock of $11.00 per share, exercise price
of $30.54 per share, risk free interest rate of 1.47%,
volatility of 88.13%, dividend yield of $0 and life of five
years. The promissory notes will be recorded at their relative
fair value of $1.5 million and the warrants will be
recorded as additional paid in capital at their relative fair
value of $492,462.
In December 2008, the Company issued a promissory note to Weil,
Gotshal & Manges LLP in the principal amount of
$1.0 million in lieu of payment of accrued legal fees and
expenses. The promissory note issued to Weil, Gotshal &
Manges LLP has an interest rate of 3% per annum and will mature
on the earlier to occur of March 31, 2009 or the
consummation of the Company’s initial public offering.
On January 14, 2009, the Company’s Board of Directors
adopted a formal stock option plan, the 2009 Equity Incentive
Plan (the “Plan”), to be effective as of
January 14, 2009, pending stockholder approval. Under the
Plan, the Company may award shares or grant options to purchase
shares as an additional incentive to employees, directors and
consultants of the Company or its affiliates. The Plan
authorized the issuance of an aggregate of 1,000,000 shares
of common stock pursuant to awards or upon the exercise of
options or other rights. The Plan is administered by the
Compensation Committee of the Board of Directors, or at its
election, a committee appointed by the Board of Directors.
Options may be granted for a term not to exceed ten
(10) years from the date of grant and are subject to
exercisability provisions as determined by the Compensation
Committee.
To the Board of Directors and Members of
Renewable Environmental Solutions, LLC
We have audited the accompanying balance sheet of Renewable
Environmental Solutions, LLC as of July, 31 2005, and the
related statements of operations, members’ equity, and cash
flows for the seven months ended July 31, 2005. These
financial statements are the responsibility of the
Company’s management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. We were not engaged to perform an
audit of the Company’s internal control over financial
reporting. Our audits included consideration of internal control
over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not
for the purpose of expressing an opinion on the effectiveness of
the Company’s internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by
management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable
basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of Renewable Environmental Solutions, LLC at July 31, 2005,
and the results of their operations and their cash flows for the
seven months ended July 31, 2005, in conformity with
U.S. generally accepted accounting principles.
Organization and
Summary of Significant Accounting Policies
Description
Renewable Environmental Solutions, LLC, a Delaware corporation
(“RES” or the “Company”) was formed on
December 4, 2000 as a 50/50 joint venture between Resource
Recovery Corporation (“RRC”), a wholly-owned
subsidiary of Changing World Technologies, Inc.
(“CWT”), and ConAgra Poultry Company
(“CPC”). The joint venture was formed for the purpose
of marketing an emerging technology known as Thermal Conversion
Process (“TCP”). RRC utilizes the exclusive worldwide
rights to TCP through an exclusive license agreement with the
holder of the TCP patents, AB-CWT, LLC., (“AB-CWT”) a
related party. RES operates an approximately 250 ton-per-day
facility which converts agricultural waste into renewable
diesel. The principal feedstock is supplied by Butterball, LLC
under a contract which expires in May 2010.
As part of the joint venture formation, CPC agreed to contribute
the first $1,450,000 to support administrative expenses prior to
commercialization during the term of the agreement, defined as
the funding obligation, plus $500 in cash. RRC agreed to
contribute the sublicense of the licensed technology mentioned
above plus $500 in cash. Pursuant to the joint venture
agreement, all losses of the Company were to be allocated to CPC
until cumulative net losses were equal to the cumulative amount
advanced by CPC pursuant to its funding obligation. Thereafter,
the losses of the Company were to be allocated to the members in
proportion to their units. The CPC funding obligation was
increased to $3,500,000 through an amendment to the joint
venture agreement in July 2004.
In July 2003, CPC assigned its ownership interest in RES to
ConAgra Foods Refrigerated Foods Co., Inc. (“CRF”) in
conjunction with the sale of CPC to Pilgrim’s Pride
Corporation.
On July 2005, CRF’s 50% interest in RES, plus
$2.0 million was exchanged for 419,438 shares of
CWT’s common stock and a warrant to purchase
140,352 shares of CWT’s common stock. As a result of
this exchange, RES became a wholly-owned subsidiary of CWT and
the licensing agreement was terminated.
Estimates
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States
(“US GAAP”) requires management to make estimates and
assumptions that affect the reported amount of assets and
liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements, and amounts of income
and expenses during the reporting period. Actual results could
differ from those estimates.
Cash and Cash
Equivalents
Cash and cash equivalents include highly liquid investments with
original maturities of three months or less and consist
primarily of money market funds and time deposits.
Inventories
Inventories are stated at the lower of cost (determined on a
first-in, first-out basis) or market. The Company evaluates its
inventories to determine excess or slow moving products based on
quantities on hand, current orders and expected future demand.
Property, plant and equipment are recorded at cost. Depreciation
and amortization is provided on a straight-line basis over the
following estimated useful lives:
Buildings and improvements
22 years
Machinery and equipment
5 - 20 years
Furniture, fixtures and office equipment
5 - 10 years
Computer hardware and software
3 - 5 years
Leasehold improvements
2 - 22 years
Transportation
10 years
Leasehold improvements are amortized over the shorter of the
term of the related lease or the life of the improvement.
Repairs and maintenance are expensed as incurred. Spare parts
are expensed as purchased.
Impairment of
Long-Lived Assets
The Company accounts for its investments in long-lived assets in
accordance with Statement of Financial Accounting Standards
(“SFAS”) No. 144, “Accounting for the
Impairment or Disposal of Long-Lived Assets”
(“SFAS No. 144”). SFAS No. 144
requires a company to review its long-lived assets for
impairment whenever events or changes in circumstances indicate
that the carrying amount of an asset may not be recoverable.
The Company periodically evaluates the recoverability of the net
carrying value, of its long-lived assets. An impairment loss for
the difference between a long-lived asset’s carrying value
and its fair value is recognized when the carrying value of the
long-lived asset exceeds its undiscounted future cash flows. An
impairment loss would be recognized currently in operations.
Income
Taxes
The Company has no provision for income taxes since net income
and losses are allocated to the members for inclusion in their
respective income tax returns.
Revenue
Recognition
We recognize revenue on the sale of our products when the title
and risk of loss has passed to our customer, the sales price is
fixed or determinable and collectibility is reasonably assured,
which is generally upon shipment to the customer.
2.
Development Stage
Operations
As of December 31, 2004, RES was a development stage
company as defined in SFAS No 7, “Accounting and
Reporting by Development Stage Enterprises.” Through
December 31, 2004, RES devoted substantially all of its
efforts to its formation, raising capital, research and
development, and product development. Substantially all losses
accumulated through December 31, 2004, were considered to
be a part of development stage activities. In February 2005, RES
began to operate its facility for its intended purpose.
Accordingly, the Company is not classified as a development
stage enterprise at July 31, 2005.
Property, plant and equipment, at cost, as of July 31,2005, consisted of the following:
Building and improvements
$
2,208,918
Machinery and equipment
16,568,511
Furniture, fixtures, and office equipment
38,230
Computer hardware and software
55,158
Leasehold improvements
1,126,855
Transportation equipment
253,984
Construction in progress
1,765,955
Total
22,017,611
Less: Accumulated depreciation and amortization
(767,090
)
Property, Plant and Equipment, net
$
21,250,521
Depreciation and amortization expense for the period
$
657,061
4.
Inventories
Inventories are stated at lower of cost or market and as of
July 31, 2005 consist of the following:
Oil (at Market)
$
236,869
Work in Progress
2,029
Total Inventories
$
238,898
The amounts shown above are net of lower of cost or market
reserves of $5,372,326. The market value of renewable diesel is
determined by averaging the unit sales price over the prior
three operating months and compared with committed future sales
for reasonableness.
5.
Operating
Lease
The Company leases land, office space, and miscellaneous
equipment under several operating leases expiring at various
dates through 2027. Land lease expense for the Company
approximated $8,750 for the seven months ended July 31,2005.
Minimum lease commitments as of July 31, 2005 are as
follows:
In May 2005, the Company entered into an agreement with ConAgra
Foods Packaged Food Company, Inc. (“CFP”) whereby RES
would purchase certain by-products from CFP’s Carthage,
Missouri facility. RES agreed to purchase all of said
by-products at
agreed-upon
prices. This contract was subsequently assigned to Butterball,
LLC in October, 2006. The agreement has a term of three
(3) years, expiring May 2008. A new agreement with
Butterball, LLC commenced in May 2008 and expires in May 2010
with a favorable discount on the gross purchase price. RES paid
$992,000 under the agreement in the seven months ended
July 31, 2005.
7.
Employee Benefit
Plan
Effective January 16, 2003, RES has a 401(k) plan, which
covers all non-union employees who are at least age 18.
Under the plan, at RES discretion, RES has matched a percentage
of a participant’s compensation or a dollar amount.
RES’s contribution was $24,100 for the seven months ended
July 31, 2005.
8.
Impairment
Loss
In accordance with SFAS No. 144 “Accounting for
the Impairment or Disposal of Long-Lived Assets,”
long-lived assets such as property, plant and equipment are
reviewed for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may
not be recoverable. Recoverability of assets to be held and used
is measured by a comparison of the carrying amount of an asset
to estimated undiscounted future cash flows expected to be
generated by the asset. If the carrying amount of an asset
exceeds its estimated future cash flows, an impairment charge is
recorded for the amount by which the carrying amount of the
asset exceeds the fair value of the asset.
During 2005, RES identified certain plant equipment that was no
longer in usable condition or related to an operating activity
that RES determined was no longer economically feasible.
Accordingly, RES recorded an impairment loss of approximately
$4,953,900 during 2005. The assets that were deemed to be
impaired were determined to have no value to RES.
9.
Commitments and
Contingencies
The Company is involved in a dispute with a mechanical
contractor that participated in the construction of the
Company’s Carthage facility. The Company has filed suit
against the contractor and is seeking damages in excess of
$5,000,000. The Company has disputed liabilities of $1,149,000,
which are still accrued, to this contractor that were included
as part of the impairment loss on property and equipment
discussed above. The contractor has filed a countersuit seeking
amounts in excess of $5,000,000 from the Company. Should the
Company be found not liable for these liabilities in a future
period, the Company will record other income in that period. The
outcome of this dispute cannot be determined at this time, but
the Company believes that this matter will be settled favorably
to the Company and will not have a material adverse affect on
the financial position of the Company.
On January 11, 2006, the Attorney General of the State of
Missouri filed an action against us in the Circuit Court of
Jasper County, Missouri seeking preliminary and permanent
injunctions and civil penalties for alleged violations of
Missouri’s odor standard at our Carthage facility and for
alleged violations of our state air permit. The case was settled
by paying a $175,000 fine. The Company paid
$100,000 of the fine and the remaining $75,000 was suspended for
two years unless the Company received additional notices of
violation under the Missouri odor standards. The Company agreed
to pay an additional $25,000 per charged violation. On
November 15, 2006, the Company received a notice of excess
emission that was subsequently upgraded to a notice of
violation. On December 11, 2006, the Company agreed to pay
the first of the suspended violations. On June 5, 2007, a
resident of Carthage, Missouri, filed a petition in the Circuit
Court of Jasper County, Missouri on behalf of herself and others
similarly situated. Plaintiff alleges that the Company’s
facility in Carthage creates a nuisance. Plaintiff seeks
compensatory damages, punitive damages, injunctive relief and
attorneys’ fees and costs. The outcome of this dispute
cannot be determined at this time, but the Company believes that
this matter will be settled favorably to the Company and will
not have a material adverse affect on the financial position of
the Company.
From time to time, the Company is subject to litigation, claims,
and administrative proceedings resulting from the operation of
its business. In the opinion of management, no such matters are
pending that will have a material adverse affect on the
financial position of the Company.
10.
Intangibles and
Other Assets
Intangibles include the initial contribution of the technology
sub-license agreement by RRC, valued at $1,450,000. The initial
license fee due to RRC pursuant to the sub-license agreement of
$64,300 is also included in intangible assets as of
July 31, 2005.
Other assets include plan permits and engineering for potential
future sites totaling $167,107 as of July 31, 2005.
11.
Related Party
Transactions
The Company paid $1,274,417 to CRF for the purchase of feedstock
in accordance with the by-product supply agreement, lease
payments for the land, and payment for management and support
fees as per the joint venture agreement. The Company paid
$268,572 to CWT for management and support fees per the joint
venture agreement.
During the seven months ended July 31, 2005, RES collected
a grant receivable in the amount of $3,491,500 from the Society
for Energy and Environmental Research, a related party and a
not-for-profit energy research and development corporation
funded by the United States Department of Energy.
2,750,000 Shares
Changing World Technologies, Inc.
Common Stock
Dealer Prospectus
Delivery Obligation
Until ,
2009 (25 days after the date of this offering), all dealers
that effect transactions in these securities, whether or not
participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers’ obligation
to deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
The following table sets forth the estimated costs and expenses,
other than the underwriting discounts and commissions, incurred
by the Registrant in connection with the sale of the securities
being registered. All amounts are estimates except the SEC
registration fee, the FINRA filing fee and the NYSE Alternext
listing fee.
SEC Registration Fee
$
3,930
FINRA Filing Fee
$
10,500
NYSE Alternext Listing Fee
$
75,000
Printing Costs
$
485,000
Legal Fees and Expenses
$
1,400,000
Accounting Fees and Expenses
$
1,000,000
Blue Sky Fees and Expenses
$
10,000
Transfer Agent and Registrar Fees
$
10,000
Miscellaneous
$
5,570
Total
$
3,000,000
Item 14.
Indemnification
of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as
amended, or DGCL, provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in
good faith and in a manner 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, had no reasonable
cause to believe his conduct was unlawful. Section 145
further provides that a corporation similarly may indemnify any
such person serving in any such capacity who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney’s fees)
actually and reasonably incurred in connection with the defense
or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or such other court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper.
The Registrant’s Bylaws authorize the indemnification of
our officers and directors, consistent with Section 145 of
the DGCL. The Registrant intends to enter into indemnification
agreements with each of its directors and executive officers.
These agreements, among other things, will require the
Registrant to indemnify each director and executive officer to
the fullest extent permitted by Delaware law, including
indemnification of expenses such as attorneys’ fees,
judgments, fines and settlement
amounts incurred by the director or executive officer in any
action or proceeding, including any action or proceeding by or
in right of us, arising out of the person’s services as a
director or executive officer.
Reference is made to Section 102(b)(7) of the DGCL which
enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the
personal liability of a director for violations of the
director’s fiduciary duty, except (i) for any breach
of the director’s duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the DGCL,
which provides for liability of directors for unlawful payments
of dividends of unlawful stock purchase or redemptions, or
(iv) for any transaction from which a director derived an
improper personal benefit.
The Registrant expects to maintain standard policies of
insurance that provide coverage (i) to its directors and
officers against loss rising from claims made by reason of
breach of duty or other wrongful act and (ii) to the
Registrant with respect to indemnification payments that it may
make to such directors and officers.
The proposed form of Underwriting Agreement to be filed as
Exhibit 1.1 to this Registration Statement provides for
indemnification to the Registrant’s directors and officers
by the underwriters against certain liabilities.
Item 15.
Recent Sales
of Unregistered Securities.
The share and per share information set forth below reflects the
seven for one stock split and a subsequent one for three reverse
stock split of our common stock.
Since August 2005, we have sold and issued the following
unregistered securities:
In December 2008, we completed a secured debt and warrant
financing for aggregate net proceeds of $2.0 million
whereby we issued promissory notes and warrants to certain
existing stockholders. We issued (i) a warrant to purchase
35,875 shares of our common stock and a promissory note in
the principal amount of $615,000 to Sterling Acquisitions, LLC,
(ii) a warrant to purchase 24,354.17 shares of our
common stock and a promissory note in the principal amount of
$417,500 to Jerome Finkelstein, (iii) a warrant to purchase
24,354.17 shares of our common stock and a promissory note
in the principal amount of $417,500 to Harold Finkelstein,
(iv) a warrant to purchase 8,750 shares of our common
stock and a promissory note in the principal amount of $150,000
to Gas Technology Institute and (v) a warrant to purchase
23,333.33 shares of our common stock and a promissory note
in the principal amount of $400,000 to Eizel 33, LLC. Each of
the foregoing promissory notes is fully secured by all of our
assets, has an interest rate of 18% per annum and will mature on
the earlier to occur of March 31, 2009 or the consummation
of our initial public offering. Each of the foregoing warrants
has an exercise price of $30.54 per share, is exercisable
beginning January 2010 and expires in December 2013.
In December 2008, we issued a promissory note to Weil,
Gotshal & Manges LLP in the principal amount of
$1.0 million. The promissory note issued to Weil,
Gotshal & Manges LLP has an interest rate of 3% per
annum and will mature on the earlier to occur of March 31,2009 or the consummation of our initial public offering.
In August 2008, we issued 872,569 shares of our common
stock, par value $0.01, at a purchase price of $8.58 per
share for an aggregate purchase price of $7.5 million to
existing stockholders. We also granted options to purchase
210,466 shares of our common stock with an exercise price
of $30.54, of which options to purchase 110,833 shares of
common stock are performance based.
In December 2007, Brian S. Appel, the our chief executive
officer, exercised his option to purchase 1,167 shares of
common stock, par value $0.01 at an exercise price of $7.86
pursuant to an option grant in December 2002.
In July 2007, we issued 409,356 shares of our common stock,
par value $0.01, and warrants to purchase 231,096 shares of
our common stock with an exercise price of $30.54 per share
to Stonehill Institutional Partners, L.P. and
409,356 shares of our common stock, par value $0.01, and
warrants to purchase 231,098 shares of our common stock
with an exercise price of $30.54 per share to Stonehill
Offshore Partners Limited for an aggregate purchase price of
$25,000,000.
In July 2007, we issued 34,386 shares of our common stock,
par value $0.01, and warrants to purchase 8,319 shares of
our common stock with an exercise price of $30.54 per share
for an aggregate amount of $1,050,000 to Sterling Acquisitions,
the Finkelstein Group and Goldman, Sachs & Co pursuant
to the conversion of the promissory notes issued in June 2007
described below.
In June 2007, the Company’s Board of Directors approved the
issuance of convertible promissory notes to three existing
investors, who also serve on the Company’s Board of
Directors, for an aggregate of $1,050,000. The convertible
promissory notes earned interest at a rate of 8% per annum and
were due and payable on September 30, 2007. On
July 23, 2007, the convertible promissory notes were
converted into 34,386 shares of common stock and warrants
to purchase 19,411 shares of common stock with an exercise
price of $30.54 per share. We determined the values ascribed to
the common stock and warrants equated to $1,050,000.
In April 2007, we granted James H. Freiss, our chief operating
officer, an option to purchase 7,000 shares of our common
stock, par value $0.01. The options are exercisable at an
exercise price of $34.29 per share and vest, in equal annual
installments, over a period of three years from the date of the
grant.
In January 2007, we granted Don Sanders, the manager of our
plant in Carthage, Missouri, and James H. Freiss, our chief
operating officer, each an option to purchase 1,167 shares
of our common stock, par value $0.01. The options are
exercisable at an exercise price of $34.29 per share and vest,
in equal annual installments, over a period of three years from
the date of the grant.
In December 2006, the Company’s Board of Directors approved
a private placement of 1,130,463 shares common stock to
existing stockholders at a purchase price of $8.58 per share.
Each stockholder was entitled to subscribe for one new share for
every six shares held of record on December 11, 2006.
Through December 31, 2006, the Company received $5,683,031
for subscriptions for 663,021 shares. Through
December 31, 2007, the Company received $9,687,288 for
subscriptions for 1,130,185 shares of this offering.
Pursuant to a stock purchase agreement, dated as of
September 19, 2006, we issued 58,333 shares of our
common stock, par value $0.01, for an aggregate purchase price
of $2,000,000 to HCM-CWT Investments I, LLC. There were no
underwriters employed in connection with this issuance.
We entered into an employment agreement, dated as of
September 1, 2006, with Steven A. Carlson, our former chief
financial officer, pursuant to which we issued options to
purchase 23,333 shares of our common stock, par value
$0.01. There were no underwriters employed in connection with
this issuance. The options were exercisable at an exercise price
of $34.29 per share and vest, in equal annual installments, over
a period of four years from the date of the grant.
We entered into an employment agreement, dated as of May 8,2006, with Brad Aldrich, our former chief operating officer,
pursuant to which we issued options to purchase
35,000 shares of our common stock, par value $0.01. There
were no underwriters employed in connection with this issuance.
The options were exercisable at an exercise price of $34.29 per
share and vest, in equal annual installments, over a period of
four years from the date of the grant.
On April 25, 2006, the Company’s Board of Directors
approved a private placement of 611,259 shares of common
stock to existing stockholders at a purchase price of $15.42 per
share. Each stockholder was entitled to subscribe for one new
share for every ten shares held of record on May 9, 2006.
Through December 31, 2006, the Company received $9,429,036
for subscriptions for 611,142 shares of this offering.
The issuance of the shares described above were exempt from
registration under Section 4(2) of the Securities Act as a
transaction by an issuer not involving a public offering and
Regulation D promulgated thereunder. There were no
underwriting discounts or commissions paid in connection with
these private placements or option grants.
Amendment to the Amended and Restated Certificate of
Incorporation.
3
.3**
Second Amendment to the Amended and Restated Certificate of
Incorporation.
3
.4**
Third Amendment to the Amended and Restated Certificate of
Incorporation.
3
.5**
Fourth Amendment to the Amended and Restated Certificate of
Incorporation.
3
.6**
Form of Second Amended and Restated Certificate of Incorporation
to be in effect after the closing of the offering made under
this Registration Statement.
Promissory Note to Sterling Acquisitions, LLC, dated as of
December 30, 2008.
4
.14**
Promissory Note to Gas Technology Institute, dated as of
December 30, 2008.
4
.15**
Common Stock Purchase Warrant No. W-7, dated as of December 30,2008.
4
.16**
Common Stock Purchase Warrant No. W-8, dated as of December 30,2008.
4
.17**
Common Stock Purchase Warrant No. W-9, dated as of December 30,2008.
4
.18**
Common Stock Purchase Warrant No. W-10, dated as of December 30,2008.
4
.19**
Common Stock Purchase Warrant No. W-11, dated as of December 30,2008.
5
.1**
Opinion of Weil, Gotshal & Manges LLP.
9
.1**
Amended and Restated Voting Agreement, dated as of
September 30, 2005, between Stockholders named therein and
Changing World Technologies, Inc.
10
.1**
Securities Exchange Agreement, dated as of July 21, 2005,
between ConAgra Foods, Inc. and Changing World Technologies, Inc.
10
.2**
Stock Purchase Agreement, dated as of September 30, 2005,
between GSFS Investments I Corp. and Changing World
Technologies, Inc.
10
.3**
Stock Purchase Agreement, dated as of September 19, 2006,
between HCM-CWT Investments I, LLC and Changing World
Technologies, Inc.
10
.4**
Stock Purchase Agreement, dated as of July 23, 2007 between
Stonehill Institutional Partners, L.P., Stonehill Offshore
Partners Limited and Changing World Technologies, Inc.
10
.5**
Securities Purchase Agreement, dated as of October 24,2002, between Changing World Technologies, Inc. and each of the
investors set forth therein.
10
.6**
First Amendment to Securities Purchase Agreement, dated as of
July 14, 2005 between Changing World Technologies, Inc. and
each of the investors set forth therein.
Certain portions of this exhibit
have been omitted and filed separately with the Securities and
Exchange Commission under a confidential treatment request
pursuant to Rule 406 of the Securities Act of 1933, as
amended, and Rule 24b-2 of the Securities Exchange Act of
1934, as amended
The undersigned Registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreements, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
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 provisions referenced in Item 14 of this registration
statement, 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
Securities 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 hereunder, 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 of whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment No. 9 to the
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of West
Hempstead, State of New York, on February 11, 2009.
CHANGING WORLD TECHNOLOGIES, INC.
By:
/s/ Brian
S. Appel
Name: Brian S. Appel
Title: Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933 this
Amendment No. 9 to the Registration Statement has been
signed by the following persons in the capacities and on
February 11, 2009.
Promissory Note to Sterling Acquisitions, LLC, dated as of
December 30, 2008.
4
.14**
Promissory Note to Gas Technology Institute, dated as of
December 30, 2008.
4
.15**
Common Stock Purchase Warrant No. W-7, dated as of December 30,2008.
4
.16**
Common Stock Purchase Warrant No. W-8, dated as of December 30,2008.
4
.17**
Common Stock Purchase Warrant No. W-9, dated as of December 30,2008.
4
.18**
Common Stock Purchase Warrant No. W-10, dated as of December 30,2008.
4
.19**
Common Stock Purchase Warrant No. W-11, dated as of December 30,2008.
5
.1**
Opinion of Weil, Gotshal & Manges LLP.
9
.1**
Amended and Restated Voting Agreement, dated as of
September 30, 2005, between Stockholders named therein and
Changing World Technologies, Inc.
10
.1**
Securities Exchange Agreement, dated as of July 21, 2005,
between ConAgra Foods, Inc. and Changing World Technologies, Inc.
10
.2**
Stock Purchase Agreement, dated as of September 30, 2005,
between GSFS Investments I Corp. and Changing World
Technologies, Inc.
10
.3**
Stock Purchase Agreement, dated as of September 19, 2006,
between HCM-CWT Investments I, LLC and Changing World
Technologies, Inc.
10
.4**
Stock Purchase Agreement, dated as of July 23, 2007 between
Stonehill Institutional Partners, L.P., Stonehill Offshore
Partners Limited and Changing World Technologies, Inc.
10
.5**
Securities Purchase Agreement, dated as of October 24,2002, between Changing World Technologies, Inc. and each of the
investors set forth therein.
First Amendment to Securities Purchase Agreement, dated as of
July 14, 2005, between Changing World Technologies, Inc. and
each of the investors set forth therein.
10
.7**
2002 Stock Plan.
10
.8**
Renewable Diesel Fuel Oil Sales Contract with Schreiber Foods,
Inc. dated March 17, 2008.
Certain portions of this exhibit have been omitted and filed
separately with the Securities and Exchange Commission under a
confidential treatment request pursuant to Rule 406 of the
Securities Act of 1933, as amended, and
Rule 24b-2
of the Securities Exchange Act of 1934, as amended
Dates Referenced Herein and Documents Incorporated by Reference