As filed with the Securities and Exchange Commission on April 27, 2007
Registration Number: 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GS CLEANTECH CORPORATION
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(Exact name of Registrant as specified in Charter)
Delaware 59-3764931
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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)
2007 EQUITY INCENTIVE PLAN
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(Full Title of Plan)
David Winsness
GS CleanTech 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
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum
Securities Amount to Offering Aggregate Amount of
to be Registered be Registered(1) Price per Share (2) Offering Price (2) Registration Fee
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Common Stock, 25,000,000 shares $0.0146 $365,000 $11.21
$.001 par value
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(1) This Registration Statement also covers an indeterminable number of
additional shares that may be issued as a result of an adjustment in the
shares in the event of a stock split, stock dividend or similar capital
adjustment, as required by the Plan.
(2) The price stated is estimated solely for purposes of calculation of the
registration fee and is the product resulting from multiplying 25,000,000
shares by $0.0146 the closing price for the Common Stock reported on the
OTC Bulletin Board as of April 19, 2007.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
GS CleanTech Corporation is incorporating by reference the following
documents previously filed with the Securities and Exchange Commission:
(a) GS CleanTech's Annual Report on Form 10-KSB for the year ended
December 31, 2006; and
(b) the description of GS CleanTech's Common Stock contained in the
Registration Statement on Form 10-SB filed on August 27, 1998 by KBF
Pollution Management, Inc., the predecessor to GS CleanTech.
GS CleanTech is also incorporating by reference all documents hereafter
filed by GS CleanTech 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 GS CleanTech, has passed upon the validity
of the shares registered pursuant to this Registration Statement. Mr. Brantl
holds no interest in the securities of GS CleanTech 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.
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 2007 Equity Incentive 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.
GS CleanTech 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 GS
CleanTech pursuant to the provisions of the Delaware General Corporation Law or
otherwise, GS CleanTech 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 GS
CleanTech of expenses incurred or paid by a director, officer or controlling
person of GS CleanTech 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, GS CleanTech 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
GS CLEANTECH CORPORATION
25,000,000 Shares of Common Stock
The shares are being offered by persons who are officers, directors or
otherwise control persons of GS CleanTech Corporation. They acquired the shares
from GS CleanTech, either as the recipients of grants of stock or by exercising
stock options issued to them by GS CleanTech.
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 GS
CleanTech 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.
GS CleanTech common stock is listed for trading on the OTC Bulletin Board
under the trading symbol "GSCT.OB."
Purchase of GS CleanTech 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.
GS CleanTech Corporation
One Penn Plaza, Suite 1612
New York, NY 10119
212-994-5374
The date of this prospectus is April 27, 2007
TABLE OF CONTENTS
RISK FACTORS...............................................................-2-
SELLING SHAREHOLDERS.......................................................-6-
OTHER AVAILABLE INFORMATION................................................-6-
INDEMNIFICATION............................................................-7-
RISK FACTORS
You should carefully consider the risks described below before buying our common
stock. If any of the risks described below actually occurs, that event could
cause the trading price of our common stock to decline, and you could lose all
or part of your investment.
Our external auditors have issued a going concern opinion raising substantial
doubt as to the Company's ability to continue as a going concern due to the
Company's history of losses, working capital deficiency and cash position, which
conditions could impair the value of the Company's stock.
The Company incurred a loss from continuing operations of $10,227,896 for
the year ended December 31, 2006. As of December 31, 2006 the Company had
$450,627 in cash, and current liabilities exceeded current assets by $15.1
million including $6.5 million in derivative liabilities. These matters raise
substantial doubt about the Company's ability to continue as a going concern.
The conversion of our convertible debentures, the exercise of our outstanding
warrants and options and the Company'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.
As of December 31, 2006, the conversion of our outstanding convertible
debentures, and the exercise of our outstanding warrants and options could
result in the issuance of up to 320,944,000 shares of common stock, assuming all
outstanding warrants and options are currently exercisable, and taken with the
Company's various anti-dilution and price-protection agreements, are subject to
adjustment pursuant to certain anti-dilution and price-protection provisions.
Potential future dilutive securities include 50,000,000 shares issuable under
outstanding warrants, 48,810,000 in outstanding options, and 222,133,166 shares
issuable for the conversion of convertible debentures. 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.
GS CleanTech Corporation is currently in default on some of its debt, which
could result in one or more of the Company's creditors exercising their rights
upon default, which could in turn significantly impair the Company's ability to
operate.
The Company is in default of its various vendor credit program accounts,
pursuant to which the accounts payable due to several vendors was termed out
over a period of months. The amount of these two vendor accounts total $10,514
as of December 31, 2006.
Our industrial waste management services subject us to potential environmental
liability.
Our business of rendering services in connection with management of waste,
including certain types of hazardous waste, subjects us to risks of liability
for damages. Such liability could involve, without limitation, claims for
clean-up costs, personal injury or damage to the environment in cases in which
we are held responsible for the release of hazardous materials; and claims of
employees, customers, or third parties for personal injury or property damage
occurring in the course of our operations.
We could also be deemed a responsible party for the cost of cleaning any
property which may be contaminated by hazardous substances generated by us and
disposed at such property or transported by us to a site selected by us,
including properties we own or lease.
If we cannot maintain our government permits or cannot obtain any required
permits, we may not be able to continue or expand our operations.
Our business is subject to extensive, evolving, and increasingly stringent
federal, state, and local environmental laws and regulations. Such federal,
state, and local environmental laws and regulations govern our activities
regarding the treatment, storage, recycling, disposal, and transportation of
hazardous and non-hazardous waste. We must obtain and maintain permits, licenses
and/or approvals to conduct these activities in compliance with such laws and
regulations. Failure to obtain and maintain the required permits, licenses
and/or approvals would result in an inability to operate certain of our assets
and significantly impair our financial condition. If we are unable to maintain
our currently held permits, licenses, and/or approvals or obtain any additional
permits, licenses and/or approvals which may be required as we expand our
operations, we may not be able to continue certain of our operations.
Changes in environmental regulations and enforcement policies could subject us
to additional liability which could impair our ability to continue certain
operations due to the regulated nature of our operations.
Because the environmental industry continues to develop rapidly, we cannot
predict the extent to which our operations may be affected by future enforcement
policies as applied to existing laws, by changes to current environmental laws
and regulations, or by the enactment of new environmental laws and regulations.
Any predictions regarding possible liability under such laws are complicated
further by current environmental laws which provide that we could be liable,
jointly and severally, for certain activities of third parties over whom we have
limited or no control.
As our operations expand, we may be subject to increased litigation which could
significantly impair our ability to operate and our future financial results by
causing the Company to expend significant amounts of time, effort, money and
focus matters not directly related to our operations and expansion.
Our operations are regulated by numerous laws regarding procedures for
waste treatment, storage, recycling, transportation and disposal activities, all
of which may provide the basis for litigation against us. In recent years, the
waste treatment industry has experienced a significant increase in so-called
"toxic-tort" litigation as those injured by contamination seek to recover for
personal injuries or property damage. We believe that as our operations and
activities expand, there will be a similar increase in the potential for
litigation alleging that we are responsible for contamination or pollution
caused by our normal operations, negligence or other misconduct, or for
accidents which occur in the course of our business activities. Such litigation,
if significant and not adequately insured against, could impair our ability to
fund our operations. Protracted litigation would likely cause us to spend
significant amounts of our time, effort and money. This could prevent our
management from focusing on our operations and expansion.
If we cannot maintain adequate insurance coverage, we will be unable to continue
certain operations.
Our business exposes us to various risks, including claims for causing
damage to property and injuries to persons who may involve allegations of
negligence or professional errors or omissions in the performance of our
services. Such claims could be substantial. We believe that our insurance
coverage is presently adequate and similar to, or greater than, the coverage
maintained by other companies in the industry of our size. If we are unable to
obtain adequate or required insurance coverage in the future or, if our
insurance is not available at affordable rates, we would violate our permit
conditions and other requirements of the environmental laws, rules and
regulations under which we operate. Such violations would render us unable to
continue certain of our operations. These events would result in an inability to
operate certain of our assets and significantly impair our financial condition.
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.
We may have difficulty integrating our recent acquisitions into our existing
operations.
Acquisitions will involve the integration of companies that have previously
operated independently from us, with focuses on different geographical areas. We
may not be able to fully integrate the operations of these companies without
encountering difficulties or experiencing the loss of key employees or customers
of such companies. In addition, we may not realize the benefits expected from
such integration.
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,
environmental 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 services or be unable to render certain services. We may not be
successful in our efforts to attract and retain qualified personnel as their
availability is limited due to the demand of hazardous waste management services
and the highly competitive nature of the hazardous waste management industry. We
do not maintain key person insurance on any of our employees, officers or
directors.
If environmental regulation or enforcement is relaxed, the demand for our
services will decrease.
The demand for our services is substantially dependent upon the public's
concern with, the continuation and proliferation of, the laws and regulations
governing the treatment, storage, recycling, and disposal of hazardous and
non-hazardous waste. A decrease in the level of public concern, the repeal or
modification of these laws, or any significant relaxation of regulations
relating to the treatment, storage, recycling, and disposal of hazardous waste
would significantly reduce the demand for our services which could result in
lost sales opportunities and lost business, which could in turn significantly
impair our ability to operate as well as our financial condition. We are not
aware of any current federal or state government or agency efforts in which a
moratorium or limitation has been, or will be, placed upon the creation of new
hazardous waste regulations that would have an adverse effect on us.
GreenShift Corporation can exert control over us and may not make decisions that
further the best interests of all stockholders.
GreenShift Corporation owns preferred stock that may be converted into 80%
of our outstanding common stock. GreenShift is entitled to cast votes at a
shareholders meeting or by written consent that equal 80% of the total votes. As
a result, GreenShift Corporation may exert 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.
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 National Market or the NASDAQ Small-Cap
Market. Because our common stock does not trade on a stock exchange or on the
NASDAQ National Market or the NASDAQ Small-Cap 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.
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
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OTHER AVAILABLE INFORMATION
GS CleanTech Corporation is incorporating by reference the following
documents previously filed with the Securities and Exchange Commission:
(a) GS CleanTech's Annual Report on Form 10-KSB for the year ended
December 31, 2006;
(b) the description of GS CleanTech's Common Stock contained in the
Registration Statement on Form 10-SB filed on August 27, 1998 by KBF
Pollution Management, Inc., the predecessor to GS CleanTech.
GS CleanTech is also incorporating by reference all documents hereafter
filed by GS CleanTech 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, GS CleanTech 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 David Winsness, GS CleanTech Corporation, One Penn
Plaza, Suite 1612, New York, NY 10119.
GS CleanTech 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 GS CleanTech 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 controling 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, GS CleanTech
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 23rd day of
April, 2007.
GS CLEANTECH CORPORATION
By: /s/ David Winsness
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David Winsness, 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 27, 2007.
/s/ Kevin Kreisler
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Kevin Kreisler, Director,
Chief Financial Officer
/s/ David Winsness
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David Winsness,
Chief Executive Officer