As filed with the Securities and Exchange Commission on April 21, 2008
Registration Number: 333-149873
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8/A
(Amendment No. 1)
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CARBONICS CAPITAL CORPORATION
(Exact name of Registrant as specified in Charter)
Delaware 22-3328734
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(State of Incorporation) (I.R.S. Employer I.D. Number)
One Penn Plaza, Suite 1612, New York, NY 10119
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(Address of Principal Executive Offices)
2008 STOCK AND STOCK OPTION PLAN
--------------------------------
(Full Title of Plan)
Kevin Kreisler
Carbonics Capital Corporation
One Penn Plaza, Suite 1612
New York, NY 10119
(212) 994-5374
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(Name, Address and Telephone Number of Agent for Service)
Copy to:
ROBERT BRANTL, ESQ.
52 Mulligan Lane
Irvington, NY 10533
(914) 683-3026
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Carbonics Capital Corporation is incorporating by reference the following
documents previously filed with the Securities and Exchange Commission:
(a) Carbonics Capital's Annual Report on Form 10-KSB for the year
ended December 31, 2007;
(b) the description of Carbonics Capital's Common Stock contained in
its Registration Statement on Form 10-SB (No. 000-28887).
Carbonics Capital is also incorporating by reference all documents
hereafter filed by Carbonics Capital pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Robert Brantl, Esq., counsel to Carbonics Capital, has passed
upon the validity of the shares registered pursuant to this Registration
Statement. Mr. Brantl holds no interest in the securities of Carbonics
Capital Corporation.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware authorizes a corporation to provide indemnification to a director,
officer, employee or agent of the corporation, 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 such
party 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 as determined in accordance with the statute, and except that with
respect to any action which results in a judgment against the person and in
favor of the corporation the corporation may not indemnify unless a court
determines that the person is fairly and reasonably entitled to the
indemnification. Section 145 further provides that indemnification shall be
provided if the party in question is successful on the merits.
Our certificate of incorporation provides that members of our board of
directors are protected against personal liability to the fullest extent
permitted by Delaware corporate law. Delaware corporate law permits a Delaware
corporation to eliminate the personal liability of its directors for monetary
damages for breach of fiduciary duty, except for breaches of the duty of
loyalty, acts or omissions not in good faith or involving intentional
misconduct, improper payment of dividends, or transactions in which the director
derived an improper personal benefit.
Our certificate of incorporation also provides that Carbonics Capital
will indemnify our directors and officers against liabilities arising from their
service as directors and officers to the fullest extent permitted by Delaware
corporate law. Insofar as indemnification for liabilities under the Securities
Act of 1933 may be permitted to our directors, officers or controlling persons
pursuant to the foregoing provision 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 that Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 2008 Stock and Stock Option Plan
5 Opinion of Robert Brantl, Esq.
23.1 Consent of Rosenberg Rich Baker Berman & Company.
23.2 Consent of Robert Brantl, Esq. is contained in his opinion,
filed as Exhibit 5.
Item 9. Undertakings.
Carbonics Capital Corporation hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Carbonics Capital pursuant to the provisions of the Delaware General
Corporation Law or otherwise, Carbonics Capital has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by Carbonics Capital of expenses incurred or paid by a
director, officer or controlling person of Carbonics Capital 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,
Carbonics Capital will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
REOFFER PROSPECTUS
CARBONICS CAPITAL CORPORATION
10,000,000 Shares of Common Stock
The shares are being offered by persons who are officers, directors or
otherwise control persons of Carbonics Capital Corporation. They acquired the
shares from Carbonics Capital, either as the recipients of grants of stock or by
exercising stock options issued to them by Carbonics Capital.
The selling shareholders intend to sell the shares into the public
market from time to time. The shareholders will negotiate with the market makers
for Carbonics Capital common stock to determine the prices for each sale. They
expect each sale price to be near to the market price at the time of the sale.
Carbonics Capital common stock is listed for trading on the
OTC Bulletin Board under the trading symbol "CICS.OB."
Purchase of Carbonics Capital common stock involves
substantial risk. Please see "Risk Factors," which begins on page 2.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the
contrary is a criminal offense.
Carbonics Capital Corporation
One Penn Plaza, Suite 1612
New York, NY 10119
212-994-5374
The date of this prospectus is April 21, 2008
TABLE OF CONTENTS
RISK FACTORS.................................................................-2-
SELLING SHAREHOLDERS.........................................................-5-
OTHER AVAILABLE INFORMATION..................................................-5-
INDEMNIFICATION..............................................................-6-
RISK FACTORS
There are many important factors that have affected, and in the future could
affect, Carbonics' business, including, but not limited to the factors discussed
below, which should be reviewed carefully together with other information
contained in this report. Some of the factors are beyond our control and future
trends are difficult to predict.
There is substantial doubt concerning our ability to continue as a going
concern.
Carbonics incurred a loss from continuing operations of $14,329,724 during the
twelve months ended December 31, 2007, and we had $0 in cash at December 31,
2007. These matters raise substantial doubt about our ability to continue as a
going concern. Management's plans include raising additional proceeds from debt
and equity transactions and completing strategic acquisitions.
We are implementing new business plans which make the results of our business
uncertain.
Our limited operating history makes it difficult for potential investors to
evaluate our business. Therefore, our proposed operations are subject to all of
the risks inherent in the initial expenses, challenges, complications and delays
frequently encountered in connection with the formation of any new business, as
well as those risks that are specific to the biodiesel, ethanol and culinary
oils industry in general. Investors should evaluate an investment in our company
in light of the problems and uncertainties frequently encountered by companies
attempting to develop markets for new products, services and technologies.
Despite best efforts, we may never overcome these obstacles to achieve financial
success. Our business is speculative and dependent upon the implementation of
our business plan, as well as our ability to enter into agreements with third
parties for necessary financing, the provision of necessary feedstock sources,
engineering, procurement and construction services and the sale and distribution
of our biodiesel fuel on terms that will be commercially viable for us. There
can be no assurance that our efforts will be successful or result in revenue or
profit. There is no assurance that we will earn significant revenues or that our
investors will not lose their entire investment.
The fiscal efficiencies of highly capitalized competitors in biotechnology could
defeat our efforts to capture a viable market share.
The business of developing new biotechnologies is a capital-intense business,
requiring substantial capital resources. The costs that we may incur in
obtaining capital are substantially greater per dollar than the cost incurred by
large scale enterprises in the industry. This situation could cause us to be
unable to compete effectively.
The exercise of our outstanding warrants and options and Carbonics Capital
Corporation's various anti-dilution and price-protection agreements could cause
the market price of our common stock to fall, and may have dilutive and other
effects on our existing stockholders.
The exercise of our outstanding warrants and options could result in the
issuance of up to 1,438,516 shares of common stock, assuming all outstanding
warrants and options are currently exercisable. Such issuances would reduce the
percentage of ownership of our existing common stockholders and could, among
other things, depress the price of our common stock. This result could
detrimentally affect our ability to raise additional equity capital. In
addition, the sale of these additional shares of common stock may cause the
market price of our stock to decrease.
We lack capital to fund our operations.
During the twelve months ended December 31, 2007 our operations used $1,000,410
in cash, but our debt service obligations requirement cash in excess of that
amount. Loans from some of our shareholders and the issuance convertible
debentures funded our debt service. Those individuals may not be able to
continue to fund our operations or our debt service.
Our operations will suffer if we are unable to manage our rapid growth.
We are currently experiencing a period of rapid growth through internal
expansion and strategic acquisitions. This growth has placed, and could continue
to place, a significant strain on our management, personnel and other resources.
Our ability to grow will require us to effectively manage our collaborative
arrangements and to continue to improve our operational, management, and
financial systems and controls, and to successfully train, motivate and manage
our employees. If we are unable to effectively manage our growth, we may not
realize the expected benefits of such growth, and such failure could result in
lost sales opportunities, lost business, difficulties operating our assets and
could therefore significantly impair our financial condition.
Our failure to attract qualified engineers and management personnel could hinder
our success.
Our ability to attract and retain qualified engineers and other professional
personnel when we need them will be a major factor in determining our future
success. There is a very competitive market for individuals with advanced
engineering training, and we are not assured of being able to retain the
personnel we will need.
Key personnel are critical to our business and our future success depends on our
ability to retain them.
Our success depends on the contributions of our key management, and engineering
personnel. The loss of these officers could result in lost sales opportunities,
lost business, difficulties operating our assets, difficulties raising
additional funds and could therefore significantly impair our financial
condition. Our future success depends on our ability to retain and expand our
staff of qualified personnel, including environmental technicians, sales
personnel and engineers. Without qualified personnel, we may incur delays in
rendering our
Viridis Capital can exert control over us and may not make decisions that
further the best interests of all stockholders.
Viridis Capital, LLC controls 100% of our outstanding Series C preferred stock.
The preferred shares are convertible into 80% of our Common Stock. As a result,
Viridis exerts a significant degree of influence over our management and affairs
and over matters requiring stockholder approval, including the election of
directors and approval of significant corporate transactions. In addition, this
concentration of ownership may delay or prevent a change in control of us and
might affect the market price of our common stock, even when a change in control
may be in the best interest of all stockholders. Furthermore, the interests of
this concentration of ownership may not always coincide with our interests or
the interests of other stockholders and accordingly, they could cause us to
enter into transactions or agreements which we would not otherwise consider.
Investing in our stock is highly speculative and you could lose some or all of
your investment.
The value of our common stock may decline and may be affected by numerous market
conditions, which could result in the loss of some or the entire amount invested
in our stock. The securities markets frequently experience extreme price and
volume fluctuations that affect market prices for securities of companies
generally and very small capitalization companies such as us in particular.
The volatility of the market for Carbonics Capital Corporation common stock may
prevent a shareholder from obtaining a fair price for his shares.
The common stock of Carbonics Corporation is quoted on the OTC Bulletin Board.
It is impossible to say that the market price on any given day reflects the fair
value of Carbonics Corporation, since the price sometimes moves up or down by
50% or more in a week's time. A shareholder in Carbonics Corporation who wants
to sell his shares, therefore, runs the risk that at the time he wants to sell,
the market price may be much less than the price he would consider to be fair.
Our common stock qualifies as a "penny stock" under SEC rules which may make it
more difficult for our stockholders to resell their shares of our common stock.
Our common stock trades on the OTC Bulletin Board. As a result, the holders of
our common stock may find it more difficult to obtain accurate quotations
concerning the market value of the stock. Stockholders also may experience
greater difficulties in attempting to sell the stock than if it were listed on a
stock exchange or quoted on the NASDAQ Global Market or the NASDAQ Capital
Market. Because our common stock does not trade on a stock exchange or on the
NASDAQ Global Market or the NASDAQ Capital Market, and the market price of the
common stock is less than $5.00 per share, the common stock qualifies as a
"penny stock." SEC Rule 15g-9 under the Securities Exchange Act of 1934 imposes
additional sales practice requirements on broker-dealers that recommend the
purchase or sale of penny stocks to persons other than those who qualify as an
"established customer" or an "accredited investor." This includes the
requirement that a broker-dealer must make a determination on the
appropriateness of investments in penny stocks for the customer and must make
special disclosures to the customer concerning the risks of penny stocks.
Application of the penny stock rules to our common stock affects the market
liquidity of the shares, which in turn may affect the ability of holders of our
common stock to resell the stock.
Only a small portion of the investment community will purchase "penny stocks"
such as our common stock.
Carbonics Corporation common stock is defined by the SEC as a "penny stock"
because it trades at a price less than $5.00 per share. Carbonics Corporation
common stock also meets most common definitions of a "penny stock," since it
trades for less than $1.00 per share. Many brokerage firms will discourage their
customers from purchasing penny stocks, and even more brokerage firms will not
recommend a penny stock to their customers. Most institutional investors will
not invest in penny stocks. In addition, many individual investors will not
consider a purchase of a penny stock due, among other things, to the negative
reputation that attends the penny stock market. As a result of this widespread
disdain for penny stocks, there will be a limited market for Carbonics
Corporation common stock as long as it remains a "penny stock." This situation
may limit the liquidity of your shares.
SELLING SHAREHOLDERS
The table below contains information regarding the individuals
who are using this prospectus to offer common shares.
Percentage of
Shares Owned Number of Shares Owned Class Held
Selling Shareholder Position Before Offering Shares Offered After Offering After Offering
- ------------------- -------- ---------------- -------------- -------------- --------------
Kurt Gordon Director 2,000,000 2,000,000 0 --
OTHER AVAILABLE INFORMATION
Carbonics Capital Corporation is incorporating by reference the
following documents previously filed with the Securities and Exchange
Commission:
(a) Carbonics Capital's Annual Report on Form 10-KSB for the year
ended December 31, 2007;
(b) the description of Carbonics Capital's Common Stock contained in
its Registration Statement on Form 10-SB (No. 000-28887).
Carbonics Capital is also incorporating by reference all documents
hereafter filed by Carbonics Capital pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold.
Upon written request, Carbonics Capital will provide to each person,
including any beneficial owner, to whom this prospectus is delivered a copy of
any and all information that has been incorporated into this prospectus by
reference. We will provide the information at no cost to the person who requests
it. Any such request should be made to Kevin Kreisler, Carbonics Capital
Corporation, One Penn Plaza, Suite 1612, New York, NY 10119.
Carbonics Capital files with the Securities and Exchange Commission
annual, quarterly and current reports, proxy statements and other information,
which may assist you in understanding our company. In addition, we have filed a
registration statement on Form S-8, including exhibits, with respect to the
shares to be sold in the offering.
You may read and copy the registration statement or any reports,
statements or other information that we file at the Commission's Public
Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the
Commission at 1-800-SEC-0330 for further information on the operation of the
Public Reference Room. Our Commission filings, including the registration
statement, are also available to you on the Commission's Web site at
http://WWW.SEC.GOV.
INDEMNIFICATION
Section 145 of the General Corporation Law of the State of
Delaware authorizes a corporation to provide indemnification to a director,
officer, employee or agent of the corporation, 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 such
party 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 as determined in accordance with the statute, and except that with
respect to any action which results in a judgment against the person and in
favor of the corporation the corporation may not indemnify unless a court
determines that the person is fairly and reasonably entitled to the
indemnification. Section 145 further provides that indemnification shall be
provided if the party in question is successful on the merits.
Our certificate of incorporation provides that members of our board of
directors are protected against personal liability to the fullest extent
permitted by Delaware corporate law. Delaware corporate law permits a Delaware
corporation to eliminate the personal liability of its directors for monetary
damages for breach of fiduciary duty, except for breaches of the duty of
loyalty, acts or omissions not in good faith or involving intentional
misconduct, improper payment of dividends, or transactions in which the director
derived an improper personal benefit.
Our certificate of incorporation also provides that Carbonics Capital
will indemnify our directors and officers against liabilities arising from their
service as directors and officers to the fullest extent permitted by Delaware
corporate law. Insofar as indemnification for liabilities under the Securities
Act of 1933 may be permitted to our directors, officers or controlling persons
pursuant to the foregoing provision 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 that Act and is, therefore, unenforceable.
* * * * *
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Carbonics
Capital Corporation 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 New York, State of New
York on the 21st day of April, 2008.
CARBONICS CAPITAL CORPORATION
By: /s/ Kevin Kreisler
---------------------------------------
Kevin Kreisler, 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 April 21, 2008.
/s/ Kevin Kreisler
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Kevin Kreisler, Director,
Chief Executive Officer
/s/ Jacqueline Flynn
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Jacqueline Flynn
Chief Financial and Accounting Officer
/s/ Kurt Gordon
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Kurt Gordon, Director