As filed with the Securities and Exchange Commission on August 20, 2008
Registration No. ________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MOMENTUM BIOFUELS, INC.
(FORMERLY TONGA CAPITAL CORPORATION)
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(Name of small business issuer in its charter)
Colorado 84-1069035
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(State or Jurisdiction of Incorporation (I.R.S. Employer Identification
or Organization) Number)
2600 S. Shore Blvd., Suite 100
League City, Texas 77573
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(Address of principal executive offices)
(281)334-5161
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(Issuer's telephone number, Including Area Code)
2008 MOMENTUM BIOFUELS, INC. STOCK OPTION AND AWARD PLAN
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(Full title of Plan)
Gregory A. Enders, Chief Executive Officer
Momentum Biofuels, Inc.
2600 S. Shore Blvd., Suite 100
League City, Texas 77573
(281)334-5161
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(Name, address and telephone number of agent for service)
COPIES OF ALL COMMUNICATIONS TO:
Jonathan Dariyanani
Attorney at Law
Zoma Law Group, LLC
4720 Center Blvd, Suite 317
New York, NY 11101
Tel 415-699-7121 / Fax 415-358-5548
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
definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check One).
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Large accelerated filer [___] Accelerated filer [___]
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Non-accelerated filer [___] Smaller reporting company [_X_]
(Do not check if a smaller
reporting company)
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CALCULATION OF REGISTRATION FEE
Title of Each Class of Amount To Be Proposed Maximum Proposed Maximum Amount of
Securities To Be Registered Registered Offering Price Per Unit Aggregate Offering Registration
Price(1) Fee
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Common Stock 500,000 $0.42 $210,000 $8.25
(1) Estimated pursuant to Rule 457(c) under the Securities Act, solely for the
purpose of calculating the registration fee, based on the average of the bid and
asked prices of the Company's common stock as reported within five business days
prior to the date of this filing.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
The document or documents containing the information specified in Part I are not
required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement, but will be
provided as may be required under Rule 428(b)(1) of the Securities Act of 1933.
Individual agreements with the Employees which provide for the payment for
services rendered in shares of the common stock of the Company, in lieu of cash,
have been attached to the Registration Statement as Exhibits. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
a. General Plan Information
1. 2008 Stock Option and Award Plan
2. Nature and purpose of the Plan is to provide stock options and stock
compensation to employees and consultants of the Company.
3. The Plan is not subject to Employee Retirement Income Security Act
of 1974.
4. Additional information can be obtained by contacting:
Gregory A. Enders
Chief Executive Officer and Director
Momentum Biofuels, Inc.
2600 S. Shore Blvd., Suite 100
League City, Texas 77573
(281)334-5161
The Plan does not have a Plan Administrator and the Plan does not
invest.
b. Securities to be Offered
This Registration Statement on Form S-8 registers for resale 500,000 shares of
common stock, $0.01 par value per share ("Common Stock"), of Momentum Biofuels,
Inc. (the "Company").
1. Title: Common Stock
Amount: 423,542 shares to be offered pursuant to the Plan, of
which no shares have been granted to employees to date but may be
awarded in the future.
Title: Common Stock
Amount: 76,458 shares granted to consultants
GRAND TOTAL - 500,000 shares to be offered, of which 423,542 shares are to be
offered under the 2008 Stock Option Plan and 76,458 shares have been granted to
consultants.
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2008 STOCK AWARD PLAN
Amount: 423,542 shares to be offered pursuant to the Plan, of which, the
Company's Board of Directors has approved grants of no shares to
Directors/Officers, Consultants and Employees of the Company to date.
NUMBER OF
NAME SHARES GRANTED
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N/A N/A
CONSULTING AGREEMENT STOCK
The Company has agreed to issue shares under Consulting Agreements for legal
services between the Company and the individual listed below for legal services
rendered in ordinary course of business, not including mergers, fundraising or
stock promotions.
NUMBER OF
NAME SHARES TO BE
GRANTED
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M.A. Littman 76,458
2. The stock is registered under Section 12g of the Exchange Act.
c. Employees Who May Participate in the Plan
All employees to Company may participate while employed with the
Company and/or any subsidiaries of the Company.
d. Purchase of Securities Pursuant to the Plan and Payment for Securities
Offered
1. Participation is allowed in the 2008 fiscal year at the market price
per share, in amounts to be set by the Board of Directors.
2. Payment for the securities purchased may only be in cash or through
services.
3. Employees are not required to contribute to the Plan.
4. Employees and the registrant are not required to contribute to the
Plan.
5. Reports are not made to employees participating in the Plan, since
the Plan does not hold assets for employees' accounts.
6. Securities will not be purchased for the Plan in either the open
market or through private transactions.
e. Resale Restrictions
There are no resale restrictions on plan participants, except in the
event the participant is an officer, director or affiliate, or in the event that
the Plan contains a repurchase right of issuer, for any stock, or options, as a
pre-condition of resale.
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f. Tax Effects of Plan Participation
Participants will be taxed upon any shares issued for services provided
or for awards. Participants will not be taxable on stock options issued to
employees at the market price on date of grant.
g. Investment of Funds
No assets are held under the Plan.
h. Withdrawal from the Plan; Assignment of Interest
1. Employees may refuse to accept compensation or options.
2. No assignment of an interest in the Plan is possible, however, stock
or options received under the Plan may be assigned, subject to the terms of the
Plan, including the Right to Repurchase as defined therein.
3. Not applicable.
i. Forfeitures and Penalties
Except as otherwise determined by the Plan Administrator, at the time
of the Award, upon termination of a Participant's continuous service during the
applicable restriction period, the Participant's Restricted Stock, that is at
that time subject to restrictions shall be forfeited and reacquired by the
Company; provided that the Plan Administrator may provide, by rule or regulation
or in any Award agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted Stock shall be
waived in whole or in part in the event of terminations resulting from specified
causes, and the Plan Administrator may in other cases waive in whole or in part
the forfeiture of Restricted Stock.
j. Charges and Deductions and Liens Therefore
Not applicable.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933 (the "Securities Act"). Such document(s) are not
being filed with the Commission, but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant to Item 3 of
Part II hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by the Company
with the Commission are hereby incorporated by reference into this Registration
Statement:
(a) The Annual Report on Form 10-KSB of Momentum Biofuels, Inc. for the
fiscal year ended December 31, 2007 filed on April 15, 2008 under Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended.
(b) All reports filed by the Company pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 2007.
(c) The description of the common shares issued by the Company in
Registration Statement #000-50619 and any amendment or report filed for the
purpose of updating such description under Registration Statement #000-50619.
All of the above documents and documents subsequently filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Form S-8 Registration Statement and to be a part thereof from the date
of the filing of such documents. Any statement contained in the documents
incorporated, or deemed to be incorporated, by reference herein or therein shall
be deemed to be modified or superseded for purposes of this Form S-8
Registration Statement to the extent that a statement contained herein or
therein or in any other subsequently filed document which also is, or is deemed
to be, incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Form S-8
Registration Statement.
All documents incorporated by reference herein will be made available
to all participants without charge, upon written or oral request. Other
documents required to be delivered to participants pursuant to Rule 428(b)(1)
under the Securities Act of 1933 are also available without charge, upon written
or oral request. All requests for documents shall be directed to:
Gregory A. Enders, Chief Executive Officer
Momentum Biofuels, Inc.
2600 S. Shore Blvd., Suite 100
League City, Texas 77573
(281)334-5161
ITEM 4. DESCRIPTION OF SECURITIES
The description of the common shares issued by the Company in its
Registration Statement #000-50619, and any amendment or report filed for the
purpose of updating such description under Registration Statement #000-50619.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the securities being registered hereunder will be
passed on for the Company by Jonathan Dariyanani, Attorney, of New York, New
York. He is an independent securities attorney.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Colorado Revised Statutes provide 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 or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director, officer, employee or agent of the Company or is or was serving at our
request in such capacity in another corporation or business association, 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 Company
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful.
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The Company, pursuant to its bylaws, will provide indemnification with
its directors and executive officers that provide the maximum indemnity allowed
to directors and executive officers by the Colorado Revised Statutes, subject to
certain exceptions as well as certain additional procedural protections. In
addition, the indemnification provides generally that the Company will advance
expenses incurred by directors and executives officers in any action or
proceeding as to which they may be entitled to indemnification, subject to
certain exceptions.
The indemnification provisions in the bylaws may permit indemnification
for liabilities arising under the Securities Act of 1933. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officer and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Securities and Exchange
Commission has opined that such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See the Exhibit Index following the signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement
to: (i) include any prospectus required by Section 10(a)(3) of the
Securities Act; (ii) reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be selected
in the form of a prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration" table in the
effective registration statement; and (iii) include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement, provided however, that
provisions (i) and (ii) of this undertaking are inapplicable if the
information to be filed thereunder is contained in periodic reports
filed by the Company pursuant to the Exchange Act that are incorporated
by reference into the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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 director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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(c) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in
Registration Statement 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of League City, Texas on August 20, 2008.
Momentum Biofuels, Inc.
By:/s/Gregory A. Enders
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Gregory A. Enders, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated on August 20, 2008. Each person whose signature to the Registration
Statement appears below hereby appoints Gregory A. Enders as such person's
attorney-in-fact with full power to act alone, with full power of substitution
or re-substitution, for such person and in such person's name, place and stead,
in any and all capacities to sign on such person's behalf, individually and in
the capacities stated below, and to file any and all amendments and
post-effective amendments to this Registration Statement, which amendment or
amendments may make such changes and additions as such attorney-in-fact may deem
necessary or appropriate.
/s/Gregory A. Enders
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Gregory A. Enders, Chief Executive Officer, and Chairman of
the Board of Directors
/s/Richard C. Cilento
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Richard C. Cilento, Director
/s/David M. Fick
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David M. Fick, Director
/s/Gary Johnson
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Gary Johnson, Chief Operating Officer
/s/Jeffrey P. Ploen
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Jeffrey P. Ploen, Director
/s/Richard A. Robert
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Richard A. Robert, Director
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MOMENTUM BIOFUELS, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
EXHIBIT NO. DESCRIPTION
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5.1 Opinion of Jonathan Dariyanani, Attorney at Law
10.1 2008 Momentum Biofuels Stock Option Plan
23.1 Consent of Malone & Bailey, P.C.
23.2 Consent of Jonathan Dariyanani, Attorney at Law (as contained
in Exhibit 5.1)
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