formposam.htm
As filed
with the Securities and Exchange Commission on June 19, 2008
Registration
No. 333-144201
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_____________________________
POST-EFFECTIVE
AMENDMENT No. 1
ON
FORM S-3 REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_____________________________
CLEAN
DIESEL TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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2810
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06-1393453
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(State or other
jurisdiction of incorporation
or organization)
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(Primary Standard
Industrial Classification
Code Number)
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(I.R.S. Employer
Identification
No.)
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Suite
702, 300 Atlantic Street
Stamford,
CT 06901
(203)
327-7050
_________________________________________________________________________________________________________________________________________________________________________________________________________
(Address,
Including Zip Code, and Telephone Number, Including Area
Code, of
Registrant’s Principal Executive Offices)
Charles
W. Grinnell, Esq.
Vice
President, General Counsel and Corporate Secretary
Clean
Diesel Technologies, Inc.
Suite
702, 300 Atlantic Street
Stamford,
CT 06901
(203)
327-7050
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Ernest
Lorimer, Esq.
Finn
Dixon & Herling LLP
15th Floor,
177 Broad Street
Stamford,
CT 06901
(203)
325-5000
Approximate date of commencement of
proposed sale to public: From time to time after the effective date of
this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box: ¨
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, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
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. ¨
If this
Form is a registration statement pursuant to General Instruction I.D. or
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, please check
the following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, please
check the following box. ¨
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.
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Large
Accelerated Filer ¨
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Accelerated
Filer þ
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Non-Accelerated
Filer ¨ (Do
not check if a smaller reporting company.)
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Smaller
reporting company ¨
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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 be effective on
such date as the Securities and Exchange Commission, acting pursuant to said
section 8(a) may determine.
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 1 on Form S-3 constitutes a post-effective
amendment to our Registration Statement on Form S-1 (No. 333-144201), declared
effective by the Securities and Exchange Commission on October 4, 2007, and is
not registering any additional securities but is being filed for the purpose of
meeting the requirements of Section 10(a)(3) of the Securities Act of 1933, as
amended. The warrants covered by the Registration Statement (No.
333-144201) have expired and are no longer covered by the Registration
Statement. The Registrant certifies that it has reasonable grounds to
believe that it meets all of the Requirements for filing on Form
S-3. All filing fees payable in connection with the registration of
the securities were previously paid in connection with the filing of the Form
S-1.
SUBJECT
TO COMPLETION, DATED JUNE 19, 2008
The
information in this prospectus is not complete and may be changed. The selling
stockholders may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is 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.
PROSPECTUS
Clean
Diesel Technologies, Inc.
2,800,000
Shares of Common Stock
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This
prospectus relates to the resale of up to 2,800,000 shares of our common stock,
$0.01 par value per share. The shares of our common stock offered
herewith are referred to in this prospectus as the “securities”. The
selling stockholders may sell the securities from time to time in public
transactions or in privately negotiated transactions, without limitation,
through any means described in the section hereof entitled “Plan of
Distribution,” at market prices prevailing at the time of sale or at negotiated
prices or not at all. The timing and amount of any sale are within
the sole discretion of the selling stockholders. We are not aware
that any of the selling stockholders has a plan to sell the securities although
the selling shareholders may do so. We will not receive any proceeds
from the sale of shares.
On June
15, 2007, we effected a five-for-one reverse split of our common
stock. All historical share numbers and per share amounts in this
prospectus have been adjusted to give effect to this reverse split.
Our
common stock is traded in the U.S. on The NASDAQ Capital Market. Our
common stock also is traded on the Alternative Investment Market (AIM) of the
London Stock Exchange and in Germany on various regional stock exchanges and the
national electronic exchange (Xetra). Reports of transactions of our
common stock are available on The NASDAQ Capital Market (symbol: CDTI) and on
AIM (symbols: CDT and CDTI). On June 17, 2008, the last reported sale
price of our common stock was $13.44 per share on The NASDAQ Capital Market and
£5.00 per share on AIM.
Investing
in our stock involves a high degree of risk. See “Risk Factors” on
page 2 for
information that should be considered
by prospective investors.
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.
The date
of this prospectus is June 19, 2008.
TABLE
OF CONTENTS
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_____________________________
In
deciding to buy our common stock, you should rely only on the information
contained in this prospectus. We have not authorized anyone to
provide you with information different from that contained in this
prospectus. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that
the information in this prospectus is accurate as of any date other than the
date on the front of the document.
This
prospectus includes market share and industry data and forecasts that we
obtained from internal company surveys, market research, consultant surveys,
publicly available information and industry publications and
surveys. Industry surveys, publications, consultant surveys and
forecasts generally state that the information contained therein has been
obtained from sources believed to be reliable, but there can be no assurance as
to the accuracy and completeness of such information. We have not
independently verified any of the data from third-party sources nor have we
ascertained the underlying economic assumptions relied upon
therein. Similarly, internal company surveys, industry forecasts and
market research, which we believe to be reliable based upon our knowledge of the
industry, have not been verified by any independent sources. In
addition, we do not know what assumptions regarding general economic growth were
used in preparing the forecasts we cite.
The Clean
Diesel Technologies, Inc. name and logo, Platinum Plus®,
ARIS® and
Biodiesel Plus™ are either registered trademarks or trademarks of Clean Diesel
Technologies, Inc. in the United States and/or other countries. All
other trademarks, service marks or trade names referred to in this prospectus
are the property of their respective owners.
In
this prospectus unless otherwise indicated or required by the context, “Clean
Diesel Technologies,” “CDT,” the “Company,” “we,” “us” and “our” refer to Clean
Diesel Technologies, Inc. and its wholly-owned subsidiary, Clean Diesel
International, LLC.
This
summary highlights information contained elsewhere in this
prospectus. Because this is only a summary, it does not contain all
of the information that may be important to you. You should read this
entire prospectus and should consider, among other things, the matters set forth
under “Risk Factors” beginning on Page 2, together with the additional
information described under the heading “Where You Can Find Additional
Information” in this prospectus.
We
develop, design, market and license patented technologies and solutions that
reduce harmful emissions from internal combustion engines while simultaneously
improving fuel economy and engine power. We are a Delaware
corporation formed in 1994 as a wholly-owned subsidiary of Fuel Tech, Inc., a
Delaware corporation (formerly known as Fuel-Tech N.V., a Netherlands Antilles
limited liability company) (“Fuel Tech”). We were spun-off by Fuel
Tech in a rights offering in December 1995. Our principal place of
business is at 300 Atlantic Street, Suite 702, Stamford, CT 06901, our telephone
number is (203) 327-7050 and our Internet address is
http://www.cdti.com. The information on our Internet website is not
incorporated by reference in this prospectus.
Since
inception, we have developed a substantial portfolio of patents and related
proprietary rights and extensive technological know-how. Our
technologies are in the areas of platinum fuel catalysts for emissions control
and fuel economy improvement in diesel engines, and nitrogen oxide (NOx)
reduction systems for control of NOx emissions from diesel
engines. Among other solutions, we sell Platinum Plus®
fuel-borne catalyst, a diesel fuel additive, and the ARIS® NOx
reduction system, an advanced reagent injection system used in catalytic NOx
reduction systems. We develop and license technologies based upon our
portfolio of patents and related rights and our extensive technological
know-how. We have a strong technology base with approximately 26 U.S.
patents issued and 13 U.S. patent applications pending, as well as 135
international patents issued and 110 international patent applications
pending.
Increasingly,
combustion engine development is influenced by concern over global warming
caused by carbon dioxide (CO2) emissions
from fossil fuels and toxic exhaust emissions. Because carbon dioxide
results from the combustion of fossil fuels, reducing fuel consumption is often
cited as the primary way to reduce carbon dioxide emissions. Diesel
engines are as much as 40% more fuel-efficient than gasoline
engines. Thus, increased use of diesel engines relative to gasoline
engines is one way to reduce overall fuel consumption and thereby significantly
reduce carbon dioxide emissions. Diesel engines, however, emit higher
levels of two toxic pollutants than do gasoline engines fitted with catalytic
converters: specifically, particulate matter and nitrogen
oxides. Both of these pollutants affect human health and also damage
the environment.
Our
strategy is to leverage our existing base of proprietary technologies by
licensing our technologies and by developing new products, solutions and
applications. We have strategic licensing relationships with
manufacturers for integration of certain of our technologies into their products
and applications, from which we earn licensing fees, ongoing per unit royalties
and engineering fees. We continue to establish distribution channels
and strive to increase consumer awareness of our products, solutions,
applications and technologies. At the same time, we continue to
strive to lower the cost of our products and solutions and to enhance their
technological performance.
We have
incurred substantial losses from operations since our
inception. These losses totaled $51.1 million through March 31,
2008. We have been substantially dependent upon funding provided by
proceeds from private placements of our common stock to sustain our
operations.
THE
OFFERING
This
prospectus relates to the resale of up to 2,800,000 shares of our common stock,
$0.01 par value per share. The selling stockholders have indicated
that they may resell these securities in the open market, resell the securities
to other investors through negotiated transactions or hold our securities in
their portfolios. This prospectus covers the resale of these
securities by the selling stockholders either in the open market or to other
investors through negotiated transactions.
Set
forth below are the risks that we believe are material to our
investors. This section contains forward-looking
statements. You should refer to the explanation of the qualifications
and limitations on forward-looking statements set forth below under “Special
Note Regarding Forward-Looking Information.”
Risks
Related to Regulatory Matters
We
face constant changes in governmental standards by which our products are
evaluated.
We
believe that, due to the constant focus on the environment and clean air
standards throughout the world, a requirement in the future to adhere to new and
more stringent regulations both domestically and abroad is possible as
governmental agencies seek to improve standards required for certification of
products intended to promote clean air. In the event our products
fail to meet these ever-changing standards, some or all of our products may
become obsolete.
Future growth of our business
depends, in part, on enforcement of existing emissions-related environmental
regulations and further tightening of emission standards worldwide.
We expect
that the future business growth will be driven, in part, by the enforcement of
existing emissions-related environmental regulations and tightening of emissions
standards worldwide. If such standards do not continue to become
stricter or are loosened or are not enforced by governmental authorities, it
could have a material adverse effect on our business, operating results,
financial condition and long-term prospects.
New
metal standards, lower environmental limits or stricter regulation for health
reasons of platinum or cerium could be adopted and affect use of our
products.
New
standards or environmental limits on the use of platinum or cerium metal by a
governmental agency could adversely affect our ability to use our Platinum Plus
fuel-borne catalyst in some applications. In addition, California Air
Resources Board requires “multimedia” assessment (air, water, soil) of the
fuel-borne catalyst. The U.S. Environmental Protection Agency (EPA)
could require a “Tier III” test of the Platinum Plus fuel-borne catalyst at any
time to determine additional health effects of platinum or cerium which tests
may involve additional costs beyond our current resources.
Risks
Related to Our Business and Industry
We
face competition and technological advances by competitors.
There is
significant competition among companies that provide solutions for pollutant
emissions from diesel engines. Several companies market products that
compete directly with our products. Other companies offer products
that potential customers may consider to be acceptable alternatives to our
products and services. We face direct competition from companies with
far greater financial, technological, manufacturing and personnel resources,
including BASF (formerly Engelhard), Donaldson, Cummins Filtration, Innospec
(formerly Octel), Rhodia, Hilite International, Johnson Matthey (including
Argillon which it acquired in 2007) and KleenAir Systems. Newly
developed products could be more effective and cost efficient than our current
or future products. Many of the current and potential future
competitors have substantially more engineering, sales and marketing
capabilities and broader product lines than we have. We also face
indirect competition from vehicles using alternative fuels, such as methanol,
hydrogen, ethanol and electricity.
We
depend on intellectual property and the failure to protect our intellectual
property could adversely affect our future growth and success.
We rely
on patent, trademark and copyright law, trade secret protection, and
confidentiality and other agreements with employees, customers, partners and
others to protect our intellectual property. However, some of our
intellectual property is not covered by any patent or patent application, and,
despite precautions, it may be possible for third parties to obtain and use our
intellectual property without authorization.
We do not
know whether any patents will be issued from pending or future patent
applications or whether the scope of the issued patents is sufficiently broad to
protect our technologies or processes. Moreover, patent applications
and issued patents may be challenged or invalidated. We could incur
substantial costs in prosecuting or defending patent infringement
suits. Furthermore, the laws of some foreign countries may not
protect intellectual property rights to the same extent as do the laws of the
U.S.
Some of
our patents, including a platinum fuel-borne patent, will expire in
2008. However, we believe that other longer lived patents, including
those for platinum and other fuel-borne catalyst materials in combination with
after-treatment devices, will provide adequate protection of our proprietary
technology, but there can be no assurances we will be successful in protecting
our proprietary technology.
As part
of our confidentiality procedures, we generally have entered into nondisclosure
agreements with employees, consultants and corporate partners. We
also have attempted to control access to and distribution of our technologies,
documentation and other proprietary information. We plan to continue
these procedures. Despite these procedures, third parties could copy
or otherwise obtain and make unauthorized use of our technologies or
independently develop similar technologies. The steps that we have
taken and that may occur in the future might not prevent misappropriation of our
solutions or technologies, particularly in foreign countries where laws or law
enforcement practices may not protect the proprietary rights as fully as in the
U.S.
There can
be no assurance that we will be successful in protecting our proprietary
rights. Any infringement upon our intellectual property rights could
have an adverse effect on our ability to develop and sell commercially
competitive systems and components.
Our
results may fluctuate due to certain regulatory, marketing and competitive
factors over which we have little or no control.
The
factors listed below, some of which we cannot control, may cause our revenue and
results of operations to fluctuate significantly:
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Actions
taken by regulatory bodies relating to the verification, registration or
health effects of our products.
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The
extent to which our Platinum Plus fuel-borne catalyst and ARIS nitrogen
oxides reduction products obtain market
acceptance.
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The
timing and size of customer
purchases.
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Customer
concerns about the stability of our business which could cause them to
seek alternatives to our solutions and
products.
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Continued
increases in raw material costs, especially
platinum.
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An
extended interruption of the supply or a substantial increase in the price of
platinum could have an adverse effect on our business.
The cost
of platinum or the processing cost associated with converting the metal may have
a direct impact on the future pricing and profitability of our Platinum Plus
fuel-borne catalyst. The market price for platinum increased from
$480 per ounce in early 2002 to $965 per ounce at December 31, 2005, $1,118 per
ounce at December 31, 2006 and $1,530 per ounce at December 31,
2007. On June 11, 2008, the London Metal Exchange afternoon fixing
for platinum was $2,032 per ounce. Although we intend to minimize
this risk through various purchasing and hedging strategies, there can be no
assurance that this will be successful. A shortage in the supply of
platinum or a significant, prolonged increase in the price of platinum, in each
case, could have a material adverse effect on our business, operating results
and financial condition.
Failure
to attract and retain key personnel could have a material adverse effect on our
future success.
Our
success will depend, in large part, on our ability to retain current key
personnel, attract and retain future key personnel, additional qualified
management, marketing, scientific, and manufacturing personnel, and develop and
maintain relationships with research institutions and other outside
consultants. The loss of key personnel or the inability to hire or
retain qualified personnel, or the failure to assimilate effectively such
personnel could have a material adverse effect on our business, operating
results and financial condition.
We
currently depend on the marketability of a limited number of primary products
and technologies, including Platinum Plus fuel-borne catalyst, ARIS advanced
reagent injection system for selective catalytic reduction, Purifier Systems and
catalyzed wire mesh filters.
Our
Platinum Plus fuel-borne catalyst, ARIS advanced reagent injection system for
selective catalytic reduction, Purifier Systems and our catalyzed wire mesh
filter are currently our primary products and technologies. Failure
of any of our products or technologies to achieve market acceptance may limit
our growth potential. Further, our gross profit may vary widely in
relation to the mix of products and technologies that we sell during any
reporting period. We may have to cease operations if all of our
primary products fail to achieve market acceptance or fail to generate
significant revenue. Additionally, the marketability of our products
may be dependent upon obtaining verifications from regulatory agencies such as
the EPA, California Air Resources Board, or similar European agencies, as well
as the effectiveness of our products in relation to various environmental
regulations in the many jurisdictions in which we market and sell our
products.
We
may not be able to successfully market new products that are developed or obtain
direct or indirect verification or approval of our new products.
We plan
to market other emissions reduction devices used in combination with the
Platinum Plus fuel-borne catalyst, ARIS injector, EGR-SCR, catalyzed wire mesh
filter and diesel particulate filter regeneration. There are numerous
development and verification issues that may preclude the introduction of these
products for commercial sale. If we are unable to demonstrate the
feasibility of these products or obtain verification or approval for the
products from regulatory agencies, we may have to abandon the products or alter
our business plan. Such modifications to our business plan will
likely delay achievement of revenue milestones and profitability.
Risks
Related to Our Financial Condition
We
have incurred losses in the past and expect to incur losses in the
future.
We have
incurred losses since inception and have an accumulated deficit in the amount of
$51.1 million as of March 31, 2008, which amount includes approximately $4.8
million of non-cash preferred stock dividends. At the date of this
prospectus, our cash resources are estimated to be sufficient for our needs for
at least the next twelve months.
We have
recognized limited revenues through March 31, 2008 and expect to continue to
incur operating losses at least through 2008. There can be no
assurance that we will achieve or sustain significant revenues or profitability
in the future.
We
have no assurances of additional funding.
We may
seek additional funding in the form of a private or public offering of equity
securities. Debt financing would be difficult to obtain because of
limited assets and cash flows. Any equity funding may depend on prior
stockholder approval of an amendment to our certificate of incorporation
authorizing additional capital. Any offering of shares of our common
stock may result in dilution to our existing stockholders. Our
ability to consummate financing will depend on the status of our marketing
programs and commercialization progress, as well as conditions then prevailing
in the relevant capital markets. There can be no assurance that such
funding will be available if needed, or on acceptable terms. In the
event that we need additional funds and are unable to raise such funds, we may
be required to delay, reduce or severely curtail our operations or otherwise
impede our ongoing commercialization, which could have a material adverse effect
on our business, operating results, financial condition and long-term
prospects.
If
third parties claim that our products infringe upon their intellectual property
rights, we may be forced to expend significant financial resources and
management time litigating such claims and our operating results could
suffer.
Third
parties may claim that our products and systems infringe upon third-party
patents and other intellectual property rights. Identifying
third-party patent rights can be particularly difficult, especially since patent
applications are not published until up to 18 months after their filing
dates. If a competitor were to challenge our patents, or assert that
our products or processes infringe its patent or other intellectual property
rights, we could incur substantial litigation costs, be forced to make expensive
product modifications, pay substantial damages or even be forced to cease some
operations. Third-party infringement claims, regardless of their
outcome, would not only drain financial resources but also divert the time and
effort of management and could result in customers or potential customers
deferring or limiting their purchase or use of the affected products or services
until resolution of the litigation.
We
are currently dependent on a few major customers for a significant portion of
our revenue and our revenue could decline if we are unable to maintain or
develop relationships with current or potential customers.
A few
customers currently account for a significant portion of our
revenues. For the three months ended March 31, 2008, two customers
accounted for approximately 23% of our revenue. For the year ended
December 31, 2007, three customers accounted for approximately 70% of our
revenue and for the years ended December 31, 2006 and 2005, two customers
accounted for approximately 42% and 36%, respectively, of our revenue, primarily
attributable to license fees and royalties, product sales and consulting
fees. We intend to establish long-term relationships with existing
customers and continue to expand our customer base. While we
diligently seek to become less dependent on any single customer, it is likely
that certain contractual relationships may result in one or more customers
contributing to a significant portion of our revenue in any given year for the
foreseeable future. The loss of one or more of our significant
customers may result in a material adverse effect on our revenue, our ability to
become profitable or our ability to continue our business
operations.
Foreign
currency fluctuations could impact financial performance.
Our
recent operating activities have primarily been in the U.S. However,
we have increased our activities in Europe and Asia, and consequently, are
exposed to fluctuations in foreign currency rates. We may manage the
risk to such exposure by entering into foreign currency futures and option
contracts. There can be no assurance that foreign currency
fluctuations will not have a significant effect on our operations in the
future.
Capital
market conditions may influence our ability to liquidate
investments.
At
December 31, 2007, we held a total of $18.8 million in investments in auction
rate securities, most of which were AAA/Aaa rated and collateralized by student
loans substantially guaranteed by the U.S. Department of
Education. During the three months ended March 31, 2008, the Company
sold $7.1 million in auction rate securities. However, starting on
February 15, 2008, the Company experienced difficulty in selling additional
securities because of the failure of the auction mechanism as a result of sell
orders exceeding buy orders. These failed auctions represent
liquidity risk exposure and are not defaults or credit
events. Holders of the securities continue to receive interest on the
investment, currently at a pre-determined rate, and the securities will be
auctioned at the pre-determined intervals until the auction succeeds, the issuer
calls the securities, or they mature. Accordingly, because there may
be no effective mechanism for selling these securities, the securities may be
viewed as non-current assets. The investments associated with failed
auctions will not be accessible until a successful auction occurs or a buyer is
found outside of the auction process. In other words, we may not be
able to liquidate the investments until general market conditions improve
and, as of the date of this prospectus, there has been no change in
credit and general market conditions. We classified $11.1 million and
$11.7 million of these auction rate securities as non-current investments as of
March 31, 2008 and December 31, 2007, respectively. At March 31,
2008, the estimated fair market value of the investments held by the Company
declined by $586,000 based upon management’s internal assessment and information
provided by the investment bank through which the Company holds such
securities. Although these securities have continued to pay interest
according to their stated terms and most of these securities continue to be
AAA/Aaa rated, the Company recorded an unrealized loss of $586,000 in other
comprehensive loss during the three months ended March 31, 2008 resulting in a
reduction in stockholders’ equity. At this time, because the Company
has the ability and intent to hold these securities until recovery of their
value, the Company does not believe such securities are other-than-temporarily
impaired or that the failure of the auction mechanism will have a material
impact on the Company’s liquidity or financial position.
We
have not and do not intend to pay dividends on shares of our common
stock.
We have
not paid dividends on our common stock since inception, and do not intend to pay
any dividends to our stockholders in the foreseeable future. We
intend to reinvest earnings, if any, in the development and expansion of our
business.
The price of our common stock may be
adversely affected by the sale of a significant number of new common
shares.
The sale,
or availability for sale, of substantial amounts of our common stock, including
shares issued upon exercise of outstanding options and warrants or shares of
common stock that may be issued in the public market or a private placement to
fund our operations or the perception by the market that these sales could
occur, could adversely affect the market price of our common stock and could
impair our ability to raise additional working capital through the sale of
equity securities. The perceived risk of dilution may cause existing
stockholders to sell their shares of stock, which would contribute to a decrease
in the stock price. In that regard, downward pressure on the trading
price of our common stock may also cause investors to engage in short sales,
which would further contribute to downward pressure on the trading price of our
stock.
Our
common stock is currently listed on The NASDAQ Capital Market and the
Alternative Investment Market of the London Stock Exchange. Our
common stock trades on these exchanges in the U.S. and the U.K. and in Germany
on various regional stock exchanges and the national electronic exchange
(Xetra), and an investor’s ability to trade the stock may be limited by trading
volume and price volatility.
The
trading volume in our common stock has been relatively limited and a
consistently active trading market for our common stock may not
develop. Our common stock began trading on The NASDAQ Capital Market
effective October 3, 2007. Prior to this date, our common stock was
traded on the OTC Bulletin Board. The average daily trading volume in
our common stock on these exchanges in 2007 was approximately 26,000
shares.
There has
been significant volatility in the market prices of publicly traded shares of
emerging growth technology companies, including our shares. Factors
such as announcements of technical developments, verifications, establishment of
distribution agreements, significant sales orders, changes in governmental
regulation and developments in patent or proprietary rights may have a
significant effect on the market price of our common stock. As
outlined above, there has been a low average daily trading volume of our common
stock. To the extent this trading pattern continues, the price of our
common stock may fluctuate significantly as a result of relatively minor changes
in demand for our shares and sales of our stock by holders.
Certain
statements in this prospectus include forward-looking statements in accordance
with the safe harbor provisions of the Private Securities Litigation Reform Act
of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E
of the Securities Exchange Act of 1934, as amended, that reflect our estimates,
expectations and projections about our future results, performance, prospects
and opportunities. Forward-looking statements include all statements
that are not historical facts. These statements are often identified
by words such as “anticipate,” “believe,” “could,” “estimate,” “expect,”
“intend,” “plan,” “may,” “should,” “will,” “would” and similar
expressions. These forward-looking statements are based on
information available to us and are subject to numerous risks and uncertainties
that could cause our actual results, performance, prospects or opportunities to
differ materially from those expressed in, or implied by, the forward-looking
statements we make in this prospectus. The discussion above under
“Risk Factors” highlight some of the more important risks identified by
management but should not be assumed to be the only factors that could affect
our future performance. Additional risk factors may be described from
time to time in our future filings with the Securities and Exchange
Commission. Accordingly, all forward-looking statements should be
evaluated with the understanding of their inherent uncertainty. You
should not place undue reliance on any forward-looking
statements. Risk factors are difficult to predict, contain material
uncertainties that may affect actual results and may be beyond our
control. Except as otherwise required by federal securities laws, we
undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events, changed
circumstances or any other reason.
Important
factors that may affect our expectations, estimates or projections
include:
|
|
·
|
our
ability to obtain additional financing that will be necessary to fund our
continuing operations;
|
|
|
·
|
technological
innovations or new products that we or our competitors
make;
|
|
|
·
|
verification
of our products by various governmental agencies including but not limited
to the U.S. Environmental Protection
Agency;
|
|
|
·
|
cost
and availability of raw materials, including precious metals necessary for
the production of our products;
|
|
|
·
|
developments
with respect to patents or proprietary
rights;
|
|
|
·
|
changes
in environmental policy or regulations in the United States or
abroad;
|
|
|
·
|
fluctuations
in market demand for and supply of our products and technologies;
and
|
|
|
·
|
price
and volume fluctuations in the stock market at large that do not relate to
our operating performance.
|
All of
the outstanding shares of common stock offered hereby are being offered by the
selling stockholders. We do not anticipate receiving any of the
proceeds from their sale. The selling stockholders will pay any
underwriting discounts and commissions and expenses incurred by the selling
stockholders for brokerage, accounting, tax or legal services or any other
expenses incurred by the selling stockholders in disposing of their
shares. We will bear all other costs, fees and expenses incurred in
effecting the registration of the shares covered by this prospectus, including,
without limitation, all registration and filing fees and fees and expenses of
our independent registered public accountants.
The
following summary description of our capital stock is qualified in its entirety
by reference to our certificate of incorporation, as amended and restated
(“Certificate of Incorporation”). These summaries are not meant to be
the complete description of each security. However, this prospectus
contains the material terms of the securities being offered.
We are
authorized to issue up to 12,000,000 shares of our common stock, $0.01 par value
per share and up to 100,000 shares of preferred stock, $0.01 par value per
share. As of the date of this prospectus, 8,139,302 shares of common
stock are issued and outstanding and no shares of preferred stock are issued and
outstanding.
Common
Stock
Holders
of shares of our common stock are entitled to one vote for each share held of
record on each matter submitted to a vote of shareholders. There is
no cumulative voting for election of Directors. Subject to the prior
rights of any series of preferred stock which may from time to time be
outstanding, if any, holders of shares of common stock are entitled to receive
ratably dividends when, as and if declared by the Board of Directors, out of
funds legally available therefor. Additionally, upon our liquidation,
dissolution, or winding up, holders of shares of our common stock are entitled
to share ratably in all assets remaining after payment of liabilities and
accrued dividends and liquidation preferences on the preferred stock, if
any. Holders of shares of our common stock have no preemptive rights
and have no rights to convert their shares of common stock into any other
securities. The outstanding shares of our common stock are, and the
shares of our common stock to be outstanding upon completion of this offering
will be, validly authorized and issued, fully paid, and
nonassessable.
Preferred
Stock
The
shares of our preferred stock may be issued in one or more series, the terms of
which may be determined at the time of issuance by the Board of Directors,
without further action by shareholders, and may include voting rights (including
the right to vote as a series on particular matters), preferences as to
dividends and liquidation, conversion rights, redemption rights, and sinking
fund provisions. As of the date of this prospectus, there is no
preferred stock outstanding.
Limitation
on Directors’ Liabilities
Our
Certificate of Incorporation limits the liability of and provides for the
indemnification of our directors to us and our stockholders to the fullest
extent permitted by Delaware law. Specifically, our directors are not
personally liable for money damages for breach of fiduciary duty as a director,
except for liability:
|
|
·
|
for
any breach of the director’s duty of loyalty to us or our
stockholders;
|
|
|
·
|
for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law;
|
|
|
·
|
for
unlawful payments of dividends, stock purchases or redemptions under
Delaware law; and
|
|
|
·
|
for
any transaction from which the director derived an improper personal
benefit.
|
Anti-takeover
Effects of Delaware Law Provisions
Section
203 of the Delaware General Corporation Law contains provisions that may make
the acquisition of control of us by means of a tender offer, open market
purchase, proxy fight or otherwise, more difficult.
In
general, Section 203 prohibits a publicly held Delaware corporation from
engaging in a “business combination” with an “interested stockholder” for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in
a prescribed manner.
Section
203 defines a “business combination” as a merger, asset sale or other
transaction resulting in a financial benefit to the interested
stockholder. Section 203 defines an “interested stockholder” as a
person who, together with affiliates and associates, owns, or, in some cases,
within three years prior, did own, 15% or more of the corporation’s voting
stock. Under Section 203, a business combination between us and an
interested stockholder is prohibited unless:
|
|
·
|
our
Board of Directors approved either the business combination or the
transaction that resulted in the stockholder becoming an interested
stockholder prior to the date the person attained the
status;
|
|
|
·
|
upon
consummation of the transaction that resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85%
of our voting stock outstanding at the time the transaction commenced,
excluding, for purposes of determining the number of shares outstanding,
shares owned by persons who are directors and also officers and issued
employee stock plans, under which employee participants do not have the
right to determine confidentiality whether shares held under the plan will
be tendered in a tender or exchange offer;
or
|
|
|
·
|
the
business combination is approved by our Board of Directors on or
subsequent to the date the person became an interested stockholder and
authorized at an annual or special meeting of the stockholders by the
affirmative vote of the holders of at least 66
2/3% of
the outstanding voting stock that is not owned by the interested
stockholder.
|
Transfer
Agent and Registrar
In the
U.S., we have appointed American Stock Transfer and Trust Company as our
transfer agent for shares of our common stock. Capita IRG, Plc is our
transfer agent for shares of our common stock in the U.K.
Trading
and Listing
Our
common stock is traded in the U.S. on The NASDAQ Capital Market, on the
Alternative Investment Market of the London Stock Exchange and in Germany on
various regional stock exchanges and the national electronic exchange
Xetra.
SEC POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, we have been informed 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.
SHARES
ELIGIBLE FOR FUTURE SALE
Upon the
completion of this offering, we will have outstanding 8,139,302 shares of common
stock. Of these shares, 7,974,311 shares of common stock are freely
transferable without restriction or further registration under the Securities
Act by persons other than “affiliates,” as that term is defined in Rule 144
under the Securities Act. In general, the remaining number of our
outstanding shares of common stock are “restricted securities” within the
meaning of Rule 144 under the Securities Act, subject to the limitations and
restrictions that are described below. Shares of common stock
purchased by our affiliates will be “restricted securities” under Rule
144. Restricted securities may be sold in the public market only if
registered or if they qualify for an exemption from registration under Rule 144,
Rule 701 or Regulation S promulgated under the Securities Act.
Rule
144 Securities
In
general, under Rule 144 as currently in effect, a person who has beneficially
owned shares of our common stock for at least six months would be entitled to
sell within any three-month period a number of shares that does not exceed the
greater of either of the following:
|
|
·
|
1%
of the number of shares of common stock then outstanding,
or
|
|
|
·
|
the
average weekly trading volume of the common stock the four calendar weeks
preceding the filing of a notice on Form 144 with respect to the
sale.
|
Sales
under Rule 144 are also subject to manner of sale provisions and notice
requirements and to the availability of current public information about
us. Rule 144 also provides that affiliates that sell shares of our
common stock that are not restricted shares must comply with the same
restrictions applicable to restricted shares, other than the holding
requirements.
Regulation
S
In
general, under Regulation S, as currently in effect, a person who complies with
the resale restrictions set forth in Sections 903 or 904 of Regulations S may
sell shares of common stock generally in offshore transactions without regard to
volume limitations, notice provisions, or to the availability of current public
information about us. However, because we are a domestic issuer, such
shares of common stock would nonetheless be deemed “restricted securities” under
Rule 144.
We cannot
predict the effect, if any, that the sales of shares of our common stock
pursuant to Rule 144, Rule 701, Regulation S or otherwise, or availability of
such shares for sale, will have on the market price of shares of our common
stock prevailing from time to time. Nevertheless, sales by current
shareholders of substantial amount of shares of common stock in the public
market could adversely affect the prevailing prices for shares of our common
stock. In addition, the availability for sale of a substantial amount
of shares of our common stock acquired in this offering could adversely affect
the prevailing market prices for shares of our common stock.
The
following table sets forth certain information with respect to the selling
stockholders. The securities set forth therein have been included in
the registration statement of which this prospectus forms a part pursuant to
registration commitments afforded to the selling stockholders by contractual
obligations. We will not receive any proceeds from the sale of the
securities by the selling stockholders.
|
Name
of Selling Stockholder
|
|
Relationship
With
The
Company
|
|
Beneficial
Ownership of Shares of Common Stock at June 12, 2008
|
|
|
Number
of Shares of Common Stock Offered For Sale
|
|
|
Beneficial
Ownership of Shares of Common Stock After Giving Effect to Proposed
Sale
|
|
|
Percentage
to be Owned After Offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stanley
Cohen & Anne Cohen
|
|
|
|
|
106,671 |
|
|
|
106,671 |
|
|
─
|
|
|
|
* |
|
|
Lucy
Roth & Stanley Cohen & Anne Cohen
|
|
|
|
|
122,015 |
|
|
|
122,015 |
|
|
─
|
|
|
|
* |
|
|
Udaset
Holdings Limited
|
|
|
|
|
302,294 |
|
|
|
91,311 |
|
|
|
210,983 |
|
|
|
2.6 |
% |
|
Regency
House Limited
|
|
|
|
|
192,093 |
|
|
|
148,148 |
|
|
|
43,945 |
|
|
|
* |
|
|
Positive
Securities Limited (David Malcolm Hunter)
|
|
|
|
|
422,761 |
|
|
|
164,331 |
|
|
|
258,430 |
|
|
|
3.2 |
% |
|
Channel
Hotels and Properties Limited
|
|
|
|
|
387,638 |
|
|
|
148,148 |
|
|
|
239,490 |
|
|
|
2.9 |
% |
|
Maison
de Bas Investments Limited
|
|
|
|
|
15,850 |
|
|
|
11,850 |
|
|
|
4,000 |
|
|
|
* |
|
|
Sallie
Martin
|
|
|
|
|
7,124 |
|
|
|
5,924 |
|
|
|
1,200 |
|
|
|
* |
|
|
Aith
Holdings Limited
|
|
|
|
|
16,607 |
|
|
|
8,296 |
|
|
|
8,311 |
|
|
|
* |
|
|
Avenir
Finances S.A.
|
|
|
|
|
450,000 |
|
|
|
450,000 |
|
|
─
|
|
|
|
* |
|
|
Roy
Nominees Ltd. A/C 845417
|
|
|
|
|
174,221 |
|
|
|
174,221 |
|
|
─
|
|
|
|
* |
|
|
Roy
Nominees Ltd A/C 845379 Eur Client
|
|
|
|
|
30,200 |
|
|
|
15,200 |
|
|
|
15,000 |
|
|
|
* |
|
|
Roy
Nominees Ltd A/C 845387 USD Client
|
|
|
|
|
10,000 |
|
|
|
10,000 |
|
|
─
|
|
|
|
* |
|
|
Roy
Nominees Ltd A/C 845360 30 PCT Client
|
|
|
|
|
167,000 |
|
|
|
105,600 |
|
|
|
61,400 |
|
|
|
* |
|
|
Roy
Nominees Ltd A/C 845336 Client Charity
|
|
|
|
|
28,800 |
|
|
|
4,000 |
|
|
|
24,800 |
|
|
|
* |
|
|
Roy
Nominees Ltd A/C 845000 Client Capital
|
|
|
|
|
187,200 |
|
|
|
185,200 |
|
|
|
2,000 |
|
|
|
* |
|
|
Yew
Tree Investments Limited
|
|
|
|
|
148,148 |
|
|
|
148,148 |
|
|
─
|
|
|
|
* |
|
|
Myriagon
Special Situations Inc.
|
|
|
|
|
148,148 |
|
|
|
148,148 |
|
|
─
|
|
|
|
* |
|
|
Liechtensteinische
Landesbank AG
|
|
|
|
|
104,000 |
|
|
|
104,000 |
|
|
─
|
|
|
|
* |
|
|
New
Energy Fund LP
|
|
|
|
|
59,257 |
|
|
|
59,257 |
|
|
─
|
|
|
|
* |
|
|
Kinloch
Rice Fields LLC
|
|
|
|
|
59,257 |
|
|
|
59,257 |
|
|
─
|
|
|
|
* |
|
|
Globex
Limited
|
|
|
|
|
44,740 |
|
|
|
44,740 |
|
|
─
|
|
|
|
* |
|
|
S.P.
Angel (Nominees) Ltd.
|
|
|
|
|
83,231 |
|
|
|
52,000 |
|
|
|
31,231 |
|
|
|
* |
|
|
John
Anthony de Havilland
|
|
Director
|
|
|
56,551 |
|
|
|
10,000 |
|
|
|
46,551 |
|
|
|
* |
|
|
Rahn
& Bodmer
|
|
|
|
|
12,000 |
|
|
|
12,000 |
|
|
─
|
|
|
|
* |
|
|
The
Shimpling Trust Limited
|
|
|
|
|
95,986 |
|
|
|
60,985 |
|
|
|
35,001 |
|
|
|
* |
|
|
Cadogan
Settled Estates Limited
|
|
|
|
|
159,765 |
|
|
|
38,000 |
|
|
|
121,765 |
|
|
|
1.5 |
% |
|
Ram
Limited
|
|
|
|
|
295,139 |
|
|
|
148,148 |
|
|
|
146,991 |
|
|
|
1.8 |
% |
|
SGA
Trustees Limited a/c AFP
|
|
|
|
|
81,442 |
|
|
|
7,407 |
|
|
|
74,035 |
|
|
|
* |
|
|
Cello
Investments Limited
|
|
|
|
|
15,628 |
|
|
|
14,813 |
|
|
|
815 |
|
|
|
* |
|
|
Kanis
SA
|
|
|
|
|
343,769 |
|
|
|
84,073 |
|
|
|
259,696 |
|
|
|
3.2 |
% |
|
Addis
Properties Limited a/c RF
|
|
|
|
|
66,422 |
|
|
|
37,035 |
|
|
|
29,387 |
|
|
|
* |
|
|
Derek
Gray
|
|
Director
|
|
|
167,205 |
|
|
|
14,813 |
|
|
|
152,392 |
|
|
|
1.9 |
% |
|
Walter
Copan
|
|
Officer
|
|
|
40,894 |
|
|
|
2,221 |
|
|
|
38,673 |
|
|
|
* |
|
|
John
Benton
|
|
|
|
|
740 |
|
|
|
740 |
|
|
─
|
|
|
|
* |
|
|
Timothy
Rogers
|
|
Officer
|
|
|
41,740 |
|
|
|
740 |
|
|
|
41,000 |
|
|
|
* |
|
|
Ann
Ruple
|
|
Officer
|
|
|
15,754 |
|
|
|
2,421 |
|
|
|
13,333 |
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
|
|
|
4,660,290 |
|
|
|
2,799,861 |
|
|
|
1,860,429 |
|
|
|
|
|
* Less
than one percent.
The
securities offered by this prospectus may be sold from time to time by the
selling stockholders named under “Selling Stockholders” above and those persons’
pledgees, donees, transferees or other successors in interest. The
selling stockholders may sell the shares of common stock on The NASDAQ Capital
Market, the Alternative Investment Market of the London Stock Exchange, or such
other trading market on which the securities are traded or otherwise, at market
prices or at negotiated prices. They may sell securities by one or a
combination of the following:
|
|
·
|
a
block trade in which a broker or dealer so engaged will attempt to sell
the shares as agent, but may position and resell a portion of the block as
principal to facilitate the
transaction;
|
|
|
·
|
purchase
by a broker or dealer as principal and resale by the broker or dealer for
its account pursuant to this
prospectus;
|
|
|
·
|
ordinary
brokerage transactions and transactions in which a broker solicits
purchasers;
|
|
|
·
|
privately
negotiated transactions;
|
|
|
·
|
if
such a sale qualifies, in accordance with Rule 144 promulgated under the
Securities Act rather than pursuant to this prospectus;
and
|
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
In making
sales, brokers or dealers engaged by the selling stockholders may arrange for
other brokers or dealers to participate. Brokers or dealers will
receive commissions or discounts from selling stockholders in amounts to be
negotiated prior to the sale.
With
regard to the securities offered hereby, the selling stockholders and any
broker-dealers that participate in the distribution may be deemed to be
“underwriters” within the meaning of Section 2(11) of the Securities
Act. Any proceeds or commissions received by them, and any profits on
the resale of securities sold by broker-dealers, may be deemed to be
underwriting discounts and commissions.
If any
selling stockholder notifies us that a material arrangement has been entered
into with a broker-dealer for the sale of shares through a block trade, special
offering, exchange distribution or secondary distribution or a purchase by a
broker or dealer, we will file a prospectus supplement, if required pursuant to
Rule 424(c) under the Securities Act, setting forth:
|
|
·
|
the
name of each of the participating
broker-dealers;
|
|
|
·
|
the
number of shares involved;
|
|
|
·
|
the
price at which the shares were
sold;
|
|
|
·
|
the
commission paid or discounts or concessions allowed to the broker-dealers,
where applicable;
|
|
|
·
|
a
statement to the effect that the broker-dealers did not conduct any
investigation to verify the information set out or incorporated by
reference in this prospectus; and
|
|
|
·
|
any
other facts material to the
transaction.
|
We are
paying the expenses incurred in connection with preparing and filing this
prospectus and the registration statement to which it relates, other than
selling commissions. To the extent, if any, that the selling
stockholders may be considered “underwriters” within the meaning of the
Securities Act, the sale of the shares by them shall be covered by this
prospectus.
We have
advised the selling stockholders that the anti-manipulation rules under the
Exchange Act may apply to sales of shares in the market and to the activities of
the selling stockholders and their affiliates. In addition, we will
make copies of this prospectus available to the selling stockholders and have
informed them of the need for delivery of copies of this prospectus to
purchasers at or prior to the time of any sale of the shares offered
hereby.
The
validity of the shares of common stock offered by this prospectus have been
passed upon for us by Finn Dixon & Herling LLP, Stamford,
Connecticut.
Our
consolidated financial statements at December 31, 2007 and 2006 and for the
years ended December 31, 2007, 2006 and 2005 included in our Annual Report on
Form 10-K, and the effectiveness of our internal control over financial
reporting as of December 31, 2007, have been audited by Eisner LLP, an
independent registered public accounting firm, as set forth in their reports
which are incorporated by reference in this prospectus. Our financial
statements are incorporated by reference in reliance upon Eisner LLP’s reports,
given on their authority as experts in accounting and auditing.
We have
filed with the Securities and Exchange Commission a registration statement on
Form S-1 (including the exhibits, schedules and amendments to the registration
statement) under the Securities Act and the common stock offered by this
prospectus. This prospectus does not contain all the information
included in the registration statement. For further information with
respect to us and the common stock offered by this prospectus, please refer to
the registration statement. Statements contained in this prospectus
as to the contents of any contracts or other document referred to in this
prospectus are not necessarily complete and, where the contract or agreement or
other document is an exhibit to the registration statement, each statement is
qualified in all respects by the provisions of the exhibit, to which reference
is now made.
We are
required by the Securities Exchange Act of 1934, as amended, to file periodic
reports, proxy statements and other information with the SEC. All
materials that we file with the Securities and Exchange Commission, including
the registration statement, may be inspected and copied at prescribed rates at
the public reference facility maintained by the Securities and Exchange
Commission at 100 F Street, N.E., Washington, DC 20549. The public
may obtain information regarding the Washington, D.C. Public Reference Room by
calling the Securities and Exchange Commission at 1-800-SEC-0330. In
addition, the registration statement is publicly available through the
Securities and Exchange Commission’s site on the Internet’s World Wide Web,
located at http://www.sec.gov.
We have
not authorized anyone to provide you with information different from that
contained in this prospectus. If anyone provides you with different
information you should not rely on it as being authorized by us. We
are offering to sell, and seeking offers to buy, shares of common stock only in
jurisdictions where offers and sales are permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus
regardless of the time of delivery of this prospectus or of any sale of common
stock. Our business, financial condition, results of operations, and
prospects may have changed since that date. We will amend or
supplement this prospectus as required by law.
Additional
information about us can be obtained from our Internet website at
http://www.cdti.com. The contents of this website do not constitute
part of this prospectus.
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is considered to be
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents filed with SEC listed below:
|
1.
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2007,
filed on March 17, 2008;
|
|
2.
|
Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2008, filed
on May 12, 2008;
|
|
3.
|
Our
Current Report on Form 8-K filed on January 2,
2008;
|
|
4.
|
Our
Proxy Statement on Schedule 14A filed on April 7, 2008;
and
|
|
5.
|
The
description of our common stock contained in our Registration Statement on
Form 8-A filed with the SEC on September 27,
2007.
|
All
reports and other documents subsequently filed by us with the SEC pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after
the date of this prospectus and before the termination of the offering shall be
deemed to be incorporated by reference in this prospectus and to be a part of
this prospectus from the date of filing of such reports and documents (other
than any information that is not deemed filed under the Exchange
Act). This prospectus also incorporates by reference any documents
that we file with the SEC after the date of the initial registration statement
and before the effectiveness of the registration statement. Any statement
contained in any document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this prospectus modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
You may
request a copy of these filings, at no cost, by sending an e-mail to
cgrinnell@cdti.com and requesting any one or more of such filings or by
contacting Charles W. Grinnell, our General Counsel, at the following address or
telephone number: Clean Diesel Technologies, Inc., 300 Atlantic Street, Suite
702, Stamford, Connecticut 06901-3522, Attention: Charles W. Grinnell; (203)
327-7050. Exhibits to the documents will not be sent, unless those exhibits have
specifically been incorporated by reference in this prospectus.
No
dealer, salesperson or other person is authorized to give any information or to
represent anything not contained in this prospectus. You must not
rely on any unauthorized information or representations. This
prospectus is an offer to sell only the shares offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. The
information contained in this prospectus is current only as of its
date.
2,800,000
Shares of Common Stock
CLEAN
DIESEL TECHNOLOGIES INC.
__________________
PROSPECTUS
__________________
OTHER INFORMATION NOT
REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table indicates the expenses to be incurred in connection with the
offering described in this Registration Statement, other than discounts and
commissions, all of which will be paid by the registrant. All amounts
are estimates, other than the SEC registration fee.
|
Securities
and Exchange Commission registration fee
|
|
$ |
1,311 |
|
|
Printing
fees and expenses
|
|
|
2,500 |
|
|
Legal
fees and expenses
|
|
|
52,500 |
|
|
Accounting
fees and expenses
|
|
|
49,500 |
|
|
Transfer
Agent and Registrar fees and expenses
|
|
|
2,500 |
|
|
Miscellaneous
expenses
|
|
|
1,689 |
|
|
Total
|
|
$ |
110,000 |
|
Item
15. Indemnification of Directors and Officers
We are
incorporated under the laws of Delaware. Our certificate of
incorporation and bylaws provide for indemnification of our directors and
officers to the fullest extent permitted under Delaware law. Delaware
General Corporation Law, Section 102(b)(7), enables a corporation in its
original certificate of incorporation or an amendment thereto validly approved
by shareholders to eliminate or limit personal liability of members of its Board
of Directors for violations of a director’s fiduciary duty of
care. However, the elimination or limitation shall not apply where
there has been a breach of the duty of loyalty, failure to act in good faith,
engaging in intentional misconduct or knowingly violating a law, paying a
dividend or approving a stock repurchase which is deemed illegal or obtaining an
improper personal benefit. In accordance with Delaware law, our
Certificate of Incorporation eliminates in certain circumstances the personal
liability of our directors for monetary damages for breach of their fiduciary
duty as directors. This provision does not eliminate the liability of
a director (i) for a breach of the director’s duty of loyalty to us or our
shareholders, (ii) for acts or omissions by the director not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for a
willful or negligent declaration of an unlawful dividend, stock purchase or
redemption or (iv) for transactions from which the director derived an improper
personal benefit.
In
addition, our Certificate of Incorporation includes provisions to indemnify our
officers and directors and other persons against expenses, judgments, fines and
amounts paid in settlement in connection with threatened, pending or completed
suits or proceedings against such persons by reason of serving or having served
as officers, directors, or in other capacities, except in relation to matters
with respect to which such persons shall be determined not to have acted in good
faith in the reasonable belief that their action was in our best interests or,
with respect to matters relating to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit
plan.
Insofar
as limitation of, or indemnification for, liabilities arising under the
Securities Act may be permitted to directors, officers, or persons controlling
us pursuant to the foregoing provisions, we have been informed that in the
opinion of the Securities and Exchange Commission, such limitation or
indemnification is against public policy as expressed in the Securities Act, and
therefore, is unenforceable.
Our
officers and directors are, or may become, in their individual capacities,
officers, directors, controlling shareholders and/or partners of other entities
engaged in a variety of businesses. Thus, there exist potential
conflicts of interest, including, among other things, time, effort and corporate
opportunity, incident to involvement with such other business
entities. The officers and directors have a fiduciary duty of loyalty
to us to disclose to us business opportunities which come to their attention
that may be in our area of interest, functionally and
geographically.
Our
officers and directors are not precluded from contracting or dealing with us or
affiliated entities, subject, however, to fully disclosing real or potential
conflicts and documenting such disclosures in corporate minutes and obtaining
approval from a majority of our disinterested directors.
Section
145 of the Delaware General Corporation Law, or the DGCL, provides that a
Delaware corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits and proceedings, whether civil, criminal, administrative or
investigative (other than action by or in the right of the corporation – a
“derivative action”), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar
standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys’ fees) incurred in
connection with the defense or settlement of such action, and the statute
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation’s certificate of incorporation, bylaws, disinterested
director vote, stockholder vote, agreement or otherwise.
The DGCL
further authorizes a Delaware corporation to purchase and maintain insurance on
behalf of any person who 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 or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. We
have purchased insurance on behalf of our respective directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as our directors or officers, or that may arise out
of their status as our directors or officers, including liabilities under the
federal and state securities laws.
|
Item
16.
|
Exhibits
and Financial Statement Schedules
|
|
Exhibit
|
|
|
Number
|
Description
|
|
|
|
|
4
|
Specimen
Stock Certificate, Common Stock (incorporated by reference to Exhibit to
Registration Statement on Form S-1 (No. 33-95840) dated as of August 16,
1995).
|
|
|
|
|
5
|
Opinion
of Finn Dixon & Herling LLP (previously filed).
|
|
|
|
|
#23(a)
|
Consent
of Eisner LLP.
|
|
|
|
|
23(b)
|
Consent
of Finn Dixon & Herling LLP (previously filed with Exhibit
5).
|
|
|
|
|
24
|
Power
of Attorney (previously filed).
|
______________________________
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
|
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. 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 reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
(iii) 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.
Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
of this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of 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 the purpose of determining liability under the Securities Act of 1933
to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of
a registration statement relating to an offering other than registration
statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however that
no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document
immediately prior to such date of first
use.
|
(b)
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant’s
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 the 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, we have been informed 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, 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 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.
Clean
Diesel Technologies, Inc.
Index
to Exhibits Item 16(b)
|
Exhibit
|
|
|
Number
|
Description
|
|
|
|
|
4
|
Specimen
Stock Certificate, Common Stock (incorporated by reference to Exhibit to
Registration Statement on Form S-1 (No. 33-95840) dated as of August 16,
1995).
|
|
|
|
|
5
|
Opinion
of Finn Dixon & Herling LLP (previously filed).
|
|
|
|
|
|
Consent
of Eisner LLP.
|
|
|
|
|
23(b)
|
Consent
of Finn Dixon & Herling LLP (previously filed with Exhibit
5).
|
|
|
|
|
24
|
Power
of Attorney (previously filed).
|
______________________________
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-3 and has duly caused this Post-Effective Amendment No. 1 to
Registration Statement (No. 333-144201) to be signed on its behalf by the
undersigned, thereunto duly authorized, in Stamford, Connecticut, on this 19th
day of June, 2008.
|
|
CLEAN
DIESEL TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
|
June 19,
2008
|
By:
|
/s/ Bernhard
Steiner
|
|
Date
|
|
Bernhard
Steiner
|
|
|
|
Chief
Executive Officer, President and
Director
|
POWER
OF ATTORNEY
Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to Registration Statement has been signed by the
following persons in the capacities and on the dates identified:
| |
|
|
|
|
|
| |
/s/ Bernhard Steiner
|
|
Chief
Executive Officer, President and Director
|
|
June
19, 2008
|
| |
Bernhard
Steiner
|
|
(principal
executive officer)
|
|
|
| |
|
|
|
|
|
| |
|
|
|
|
|
| |
/s/ Ann B. Ruple
|
|
Chief
Financial Officer, Vice President and Treasurer
|
|
June
19, 2008
|
| |
Ann
B. Ruple
|
|
(principal
financial and accounting officer)
|
|
|
| |
|
|
|
|
|
| |
|
|
|
|
|
| |
*
|
|
Director
|
|
June
19, 2008
|
| |
John
A. de Havilland
|
|
|
|
|
| |
|
|
|
|
|
| |
|
|
|
|
|
| |
*
|
|
Director,
Non-Executive Chairman of the Board of Directors
|
|
June
19, 2008
|
| |
Derek
R. Gray
|
|
|
|
|
| |
|
|
|
|
|
| |
|
|
|
|
|
| |
/s/ Charles W. Grinnell
|
|
Director,
Vice President and Corporate Secretary
|
|
June
19, 2008
|
| |
Charles
W. Grinnell
|
|
|
|
|
| |
|
|
|
|
|
| |
|
|
|
|
|
| |
*
|
|
Director
|
|
June
19, 2008
|
| |
John
J. McCloy
|
|
|
|
|
| |
|
|
|
|
|
| |
|
|
|
|
|
| |
*
|
|
Director
|
|
June
19, 2008
|
| |
David
F. Merrion
|
|
|
|
|
|
*
|
By:
|
/s/ Charles W.
Grinnell
|
|
|
|
Charles
W. Grinnell
|
|
|
|
(Attorney-in-Fact)
|
21