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1.
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We note these statements in the last paragraph: “The risks and uncertainties we have described herein are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.” Since FutureFuel is required to disclose all risks that it believes are material at this time, please delete these statements.
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Signatures, page 23
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2.
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FutureFuel’s principal accounting officer or controller also must sign the registration statement in his capacity as such. Further, any person who occupies more than one of the specified positions, for example, principal accounting officer or controller and principal financial officer, must indicate each capacity in which he signs the registration statement. See Instructions 1 and 2 for signatures on Form S-3, and revise.
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Exhibit 3.1
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3.
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The EDGAR system’s records reflect that the fourth amended and restated certificate of incorporation was filed as exhibit 3.3(f) to amendment 2 to the Form 10 filed on February 28, 2008. Please revise.
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Exhibit 5.1
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4.
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We note the references in the first and fifth paragraphs to warrant agreements, rights agreements, and unit agreements. File the forms of these agreements as exhibits to the registration statement. File also the forms of rights and units as exhibits to the registration statement.
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4.4
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Form of Warrant Agreement (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
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4.5
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Form of Warrant (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
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4.6
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Form of Rights Agreement (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
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4.7
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Form of Rights (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
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4.8
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Form of Unit Agreement (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
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4.9
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Form of Unit (to be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act)
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5.
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We note the statements in the sixth paragraph that “We express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale of issuance thereof.” Since counsel may not “carve out” the law of the relevant jurisdiction and the legality of the registrant’s actions under required state law matters, please revise. Further, please confirm that your forms of warrant agreement, rights agreement, and unit agreement will be governed by the laws of Delaware or Missouri. If governed by any other state, the opinion should be revised to include the laws of such state.
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6.
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We note that the legality opinion includes significant assumptions about the actual (future) issuance of the securities. For example, refer to the assumptions under (ii), (iii), and (iv) in paragraphs 1, 2, 3, 4, and 5 of the opinion on pages 2 and 3. While we permit the legality opinion in the registration statement for a delayed shelf offering that is declared effective to include significant assumptions about the actual (future) issuance of the securities, you must file an amended or “clean” opinion as an exhibit to the registration statement whenever a takedown occurs. Further, the amended or “clean” opinion may not include the assumptions permitted in the earlier opinion. Please confirm that you concur with our understanding of the legality opinions permitted and required for a delayed shelf offering under the federal securities laws.
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7.
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We note that the statement in the sixth paragraph that “Our opinion is based on these laws as in effect on the date hereof” and the statement is the last paragraph that “This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or any subsequent changes in applicable law.” Since the opinion must speak of the registration statement’s effective date, please delete these statements. Alternatively, file a new opinion immediately before the registration statement’s effective date.
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