As filed
with the Securities and Exchange Commission on April
9, 2010 Registration No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
GLOBAL
CLEAN ENERGY HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
Utah
(State
or other jurisdiction of
incorporation
or organization)
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87-0407858
(
I.R.S.
Employer
Identification
No.)
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6033
W. Century Blvd, Suite 895,
Los
Angeles, California 90045
(Address
of principal executive offices)
Nelson
Option Agreement
Walker
Option Agreement
Bernstein
Option Agreement
Herrera
Option Agreement
Wenzel
Option Agreement
(Full
title of the plan)
Richard
Palmer
Chief
Executive Officer
Global
Clean Energy Holdings, Inc.
6033
W. Century Blvd, Suite 895,
Los
Angeles, California 90045
(Name and address of agent for
service
)
(310)
641-4234
(Telephone
number, including area code, of agent for service)
Copy
to:
Istvan
Benko
TroyGould
PC
1801
Century Park East, Suite 1600
Los
Angeles, California 90067
(310)
789-1226
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. (Check
one):
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¨
Large accelerated filer
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¨
Accelerated filer
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¨
Non-accelerated filer
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x
Smaller reporting company
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
Title of securities to be
registered
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Amount to be registered
(1)
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Proposed
maximum
offering price per
share
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
(5)
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Common
Stock, no par value per share
(2)
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4,500,000 shares
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(2)
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$
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0.05
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(2)
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$
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225,000
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(2)
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$
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16.04
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Common
Stock, no par value per share
(3)
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1,350,000 shares
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$
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0.02
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(3)
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$
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27,000
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(3)
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$
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1.93
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Common
Stock, no par value per share
(4)
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500,000 shares
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(4)
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$
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0.01
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(4)
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$
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5,000
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(4)
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$
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0.36
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TOTAL
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6,350,000 shares
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—
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$
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257,000
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$
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18.33
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933, this registration statement
covers, in addition to the shares of common stock specified above, an
indeterminate number of additional shares of common stock that may become
issuable under the agreements pursuant to which such securities will be
issued as a result of the anti-dilution adjustment provisions contained
therein.
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(2)
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Represents
shares issuable upon the exercise of options granted to the Bruce Nelson
pursuant to a stock option agreement, effective as of March 20, 2008
(“Nelson Option Agreement”). The registration fee for shares of common
stock issuable upon exercise of such options was calculated pursuant to
Rule 457(h) of the Securities Act of 1933 using the price at which such
outstanding options may be
exercised.
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(3)
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Represents
shares issuable upon the exercise of options granted to (i) David Walker
pursuant to a stock option agreement, effective as of July 2, 2009
(“Walker Option Agreement”); (ii) Mark Bernstein pursuant to a stock
option agreement, effective as of July 2, 2009 (“Bernstein Option
Agreement”); and (iii) Juan Herrera pursuant to a stock option agreement,
effective as of December 16, 2009 (“Herrera Option Agreement”). The
registration fee for shares of common stock issuable upon exercise of such
options was calculated pursuant to Rule 457(h) of the Securities Act of
1933 using the price at which such outstanding options may be
exercised.
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(4)
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Represents
shares issuable upon the exercise of options granted to Martin Wenzel
pursuant to a stock option agreement, effective as of April 1, 2010
(“Wenzel Option Agreement”). The registration fee for shares of common
stock issuable upon exercise of such options was calculated pursuant to
Rule 457(h) of the Securities Act of 1933 using the price at which such
outstanding options may be
exercised.
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(5)
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Amount of registration fee was
calculated pursuant to Section 6(b) of the Securities Act of
1933, which provides that the fee shall be $71.30 per $1,000,000 of the
proposed maximum aggregate offering price of the securities proposed to be
offered
.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
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Plan
Information.*
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Item 2.
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Registrant
Information and Employee Plan Annual
Information.*
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*
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The
information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 of the Securities Act of 1933 and the Note to Part I of Form
S-8.
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
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Incorporation
of Documents by Reference
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The
following documents previously filed by Global Clean Energy Holdings Inc. (“we,”
“us,” “our,” or the “Company”) with the Securities and Exchange Commission (the
“SEC”) under the Securities Exchange Act of 1934 are incorporated by reference
in this registration statement:
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·
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Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2009 (“Form 10-K”) filed on April 1, 2010 (as amended by Amendment No. 1
to the Form 10-K filed on April 1,
2010);
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·
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Our
Current Report on Form 8-K filed on March 22,
2010;
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·
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Our
Current Report on Form 8-K filed on April 7, 2010;
and
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·
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The
description of our common stock as described in our Registration Statement
on Form 10 filed on June 28, 1984, and any amendment or report filed
for the purpose of updating any such
description.
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In
addition, each document that the Company files with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement which indicates that all shares of common stock
registered hereunder have been sold or that deregisters all such shares of
common stock then remaining unsold, shall be deemed to be incorporated by
reference into this registration statement and to be part thereof from the date
of the filing of such document.
Item 4.
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Description
of Securities
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Not
applicable.
Item 5.
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Interests
of Named Experts and Counsel
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Not
applicable.
Item 6.
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Indemnification
of Directors and Officers
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The
Company is a Utah corporation. Section 16-10a-902 of the Utah Revised Business
Corporation Act (the “Revised Act”) provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether formal or
informal, because he or she is or was a director of the corporation or, while a
director of the corporation, is or was serving at its request as a director,
officer, partner, trustee, employee, fiduciary or agent of another corporation
or other person or of an employee benefit plan (an “Indemnifiable Person”),
against any obligation incurred with respect to a proceeding, including any
judgment, settlement, penalty or fine, or reasonable expenses (including
attorneys’ fees), incurred in the proceeding if his or her conduct was in good
faith and he or she reasonably believed that his or her conduct was in, or not
opposed to, the best interests of the corporation, and, in the case of any
criminal proceeding, he or she had no reasonable cause to believe such conduct
was unlawful; provided, however, that pursuant to Subsection 902(4): (i)
indemnification under Section 902 in connection with a proceeding by or in the
right of the corporation is limited to payment of reasonable expenses (including
attorneys’ fees) incurred in connection with the proceeding and (ii) the
corporation may not indemnify an Indemnifiable Person in connection with a
proceeding by or in the right of the corporation in which the Indemnifiable
Person was adjudged liable to the corporation, or in connection with any other
proceeding charging that the Indemnifiable Person derived an improper personal
benefit, whether or not involving action in his or her official capacity, in
which proceeding he or she was adjudged liable on the basis that he or she
derived an improper personal benefit.
Section
16-10a-903 of the Revised Act provides that, unless limited by its articles of
incorporation, a corporation shall indemnify an Indemnifiable Person who was
successful, on the merits or otherwise, in the defense of any proceeding, or in
the defense of any claim, issue or matter in the proceeding, to which he or she
was a Party because he or she is or was an Indemnifiable Person of the
corporation, against reasonable expenses (including attorneys’ fees) incurred in
connection with the proceeding or claim with respect to which he or
she has been successful.
Section
16-10a-904 of the Revised Act provides that a corporation may pay for or
reimburse the reasonable expenses (including attorneys’ fees)
incurred by an Indemnifiable Person who is a Party to a proceeding in advance of
the final disposition of the proceeding, upon the satisfaction of certain
conditions.
Section
16-10a-907 of the Revised Act provides that, unless a corporation’s articles of
incorporation provide otherwise, (i) an officer of the corporation is entitled
to mandatory indemnification under Section 903 and is entitled to apply for
court-ordered indemnification under Section 905, in each case to the same extent
as an Indemnifiable Person, (ii) the corporation may indemnify and advance
expenses to an officer, employee, fiduciary or agent of the corporation to the
same extent as an Indemnifiable Person, and (iii) a corporation may also
indemnify and advance expenses to an officer, employee, fiduciary or agent who
is not an Indemnifiable Person to a greater extent than the right of
indemnification granted to an Indemnifiable Person, if not inconsistent with
public policy, and if provided for by its articles of incorporation, bylaws,
general or specific action of its board of directors, or contract.
The
Company’s Amended Bylaws (the “Bylaws”) provide that the Company shall indemnify
any individual made party to a proceeding because he or she is or was one of its
directors or officers against liability incurred in the proceeding, but only if
the Company has determined that such indemnification is permissible and
authorized in accordance with the procedures set forth in Sections 16-10a-906(2)
and 16-10a-906(4) of the Revised Act, and a determination has been made that (i)
the director or officer conducted himself or herself in good faith; (ii) that he
or she reasonably believed that his or her conduct was in, or not opposed to,
the Company’s best interests; and (iii) in the case of any criminal proceeding,
he or she had no reasonable cause to believe such conduct was
unlawful.
The
Company’s Bylaws further provide that the Company shall not however extend such
indemnification to an officer or director in connection with a proceeding by the
Company or in its right in which such officer or director was adjudged liable to
the Company, or in connection with any other proceeding charging that such
person derived an improper personal benefit, whether or not involving action in
his or her official capacity, in which proceeding he or she was adjudged liable
on the basis that he or she derived an improper personal benefit.
The
Bylaws also provide that if a determination is made by the Company that the
officer or director has satisfied the requirements set forth in the Bylaws and
the applicable statutory provision, then, the Company shall pay for or reimburse
the reasonable expenses incurred by an officer or director who is party to a
proceeding in advance of final disposition of the proceeding if (i) the officer
or director furnishes to the Company a written affirmation of a good faith
belief that he or she has met the applicable standard of conduct under the
Bylaws, (ii) the officer or director furnishes to the Company a written
undertaking to repay the advance if it is ultimately determined that he or she
did not meet the standard of conduct, and (iii) a determination is made that the
facts then known to those making the determination would not preclude
indemnification pursuant to the Bylaws and applicable provisions of the Revised
Act.
The
Bylaws also provide that the Company may indemnify and advance expenses to any
of its employees or agents who is not a director or officer to any extent
consistent with public policy, as determined by the Company’s Board of
Directors. Further, the Bylaws provide that the Company may purchase and
maintain insurance on behalf of any person who is or was one of the Company’s
directors, officers, employees, fiduciaries or agents, against any liability
asserted against or incurred by him or her in such capacity or arising out of
his or her status in such capacity, whether or not the Company would have the
power to indemnify him or her against such liability under applicable provisions
of the Revised Act.
The
Company’s Amended and Restated Articles of Incorporation (the “Articles”)
provides that the Company may indemnify and advance expenses to its directors,
officers, employees, fiduciaries or agents, and to any person who is or was
serving at the Company’s request as a director, officer, partner, trustee,
employee, fiduciary or agent of another corporation or other person or of an
employee benefit plan, to the fullest extent permitted under Utah law. The
Articles also provide that the personal liability of any of the Company’s
directors or officers to the Company or to its shareholders (or to any third
party) is eliminated to the fullest extent permitted by Utah
law.
Item
7. Exemption from Registration Claimed
Not
applicable.
Item
8. Exhibits
The
following exhibits are filed with this registration statement or are
incorporated by reference as a part of this registration statement:
Exhibit No.
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Exhibit
Description
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4.1
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Stock Option Agreement, effective
as of March 20, 2008, between Global Clean Energy Holdings, Inc., a Utah
corporation, and Bruce Nelson (included with this registration
statement).
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4.2
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Stock Option Agreement, effective
as of July 2, 2009, between Global Clean Energy Holdings, Inc., a Utah
corporation, and David Walker (included with this registration
statement).
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4.3
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Stock Option Agreement, effective
as of July 2, 2009, between Global Clean Energy Holdings, Inc., a Utah
corporation, and Mark Bernstein (included with this registration
statement).
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4.4
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Stock Option Agreement, effective
as of December 16, 2009, between Global Clean Energy Holdings, Inc., a
Utah corporation, and Juan Antonio Herrera (included with this
registration statement).
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4.5
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Stock Option Agreement, effective
as of April 1, 2010, between Global Clean Energy Holdings, Inc., a Utah
corporation, and Martin Wenzel (included with this registration
statement).
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5.1
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Opinion of TroyGould PC (included
with this registration
statement).
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23.1
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Consent of Hansen, Barnett &
Maxwell. P.C. (included with this registration
statement).
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23.2
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Consent of TroyGould PC (included
in the opinion filed as Exhibit
5.1).
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24.1
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Power of Attorney (included on
the signature page of this registration
statement).
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(a)
The
Company 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 this 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 this registration statement;
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement;
provided
,
however
,
that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Company pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this 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; and
(3)
To
file a post-effective amendment to remove from registration any of the
securities being registered that remain unsold at the termination of the
offering.
(b)
The
Company hereby undertakes that, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Company’s annual report pursuant
to Section 13(a) or Section 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 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 and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Los
Angeles, State of California on April 8, 2010.
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GLOBAL
CLEAN ENERGY HOLDINGS, INC.
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Date:
April 8, 2010
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By:
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/s/ BRUCE NELSON
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Bruce
Nelson
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Chief
Financial Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Richard Palmer as
his true and lawful attorney-in-fact and agent, with full power of substitution,
for him in any and all capacities, to sign this registration statement on Form
S-8 and any amendments hereto (including post-effective amendments), and to file
the same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as he might
do or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may do or cause to
be done by virtue of this power of attorney.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
Signature
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Title
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Date
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/s/
RICHARD PALMER
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Chief
Executive Officer, President and Director
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April
9, 2010
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Richard
Palmer
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/s/
DAVID R. WALKER
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Chairman
– Board of Directors
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April
9, 2010
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David
R. Walker
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/s/
MARK
BERNSTEIN
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Director
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April
9, 2010
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Mark
Bernstein
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Director
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April
__, 2010
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Martin
Wenzel
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EXHIBIT
INDEX
The
following exhibits included herewith or incorporated herein by reference are
made part of this Registration Statement:
Exhibit No
.
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Exhibit Description
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4.1
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Stock
Option Agreement, effective as of March 20, 2008, between Global Clean
Energy Holdings, Inc., a Utah corporation, and Bruce Nelson (included with
this registration statement).
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4.2
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Stock
Option Agreement, effective as of July 2, 2009, between Global Clean
Energy Holdings, Inc., a Utah corporation, and David Walker (included with
this registration statement).
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4.3
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Stock
Option Agreement, effective as of July 2, 2009, between Global Clean
Energy Holdings, Inc., a Utah corporation, and Mark Bernstein (included
with this registration statement).
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4.4
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Stock
Option Agreement, effective as of December 16, 2009, between Global Clean
Energy Holdings, Inc., a Utah corporation, and Juan Antonio Herrera
(included with this registration statement).
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4.5
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Stock
Option Agreement, effective as of April 1, 2010, between Global Clean
Energy Holdings, Inc., a Utah corporation, and Martin Wenzel (included
with this registration statement).
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5.1
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Opinion
of TroyGould PC (included with this registration
statement).
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23.1
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Consent
of Hansen, Barnett & Maxwell. P.C. (included with this registration
statement).
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23.2
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Consent
of TroyGould PC (included in the opinion filed as Exhibit
5.1).
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24.1
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Power
of Attorney (included on the signature page of this registration
statement).
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