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Following the news that next-gen biofuel company Kior failed to meet its biofuel production targets for last quarter, an investor in the company has filed a lawsuit (embedded below), and is seeking to make it class action, accusing Kior of misleading investors and making false statements. The suit, filed by investor Michael Berry, says the potential class could have hundreds or thousands of participants, and is seeking damages for losses.

Kior, a Khosla Ventures-backed startup that went public in the Summer of 2011, revealed in its second quarter earnings in early August that it was about 75 percent below its forecast for producing and shipping its next-gen biofuel last quarter. KiOR shipped 75,000 gallons last quarter from its Columbus, Mississippi plant, but was hoping to ship between 300,000 and 500,000 gallons in the quarter.

As a result of this shortfall, and its weak financial standing, Kior’s stock has fallen dramatically in recent weeks. As of Tuesday before the market opened, the stock is trading at $2.51 per share. KiOR went public in the Summer of 2011 at $15 per share.

Kior also says in its latest quarterly financial filing that it needs to raise cash through debt or equity by the end of September 2013 to fund its ongoing operations and to meet its debt requirements. The company says:

The lack of any committed sources of financing other than the remaining availability under the Loan and Security Agreement raises substantial doubt about the Company’s ability to continue as a going concern.

Berry maintains that Kior and Kior execs misled investors in terms of how far along the company was towards reaching steady-stage scaled-up commercial production. Many advanced biofuel companies can produce their fuel in small batches, but reaching a state of mass commercial production at high volumes and low costs has been the ongoing bugaboo for these companies. Many, many biofuel companies have gotten stuck at this stage of production and have determined they needed far more money and far more time to hit these milestones.

Kior emerged in late 2007 as a joint venture between Khosla Ventures and Netherlands-based biofuel startup BIOeCON. The company was funded mainly by Khosla Ventures, and the venture capital firm owns 82.3 percent of the combined voting power. Khosla Ventures isn’t named in the lawsuit, but Kior’s CEO and CFO are.

Kior has always been a high risk, long term play company. Read my assessment of Kior from about a year ago: The perils of cleantech investing: KiOR and the long term, high risk view.

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