Registration No. 333-211370
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
GEVO, INC.
(Exact
name of registrant as specified in its charter)
|
|
|
Delaware
|
|
87-0747704
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification Number)
|
345 Inverness Drive South, Building C, Suite 310
Englewood, CO 80112
(303) 858-8358
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Patrick R. Gruber
Chief
Executive Officer
345 Inverness Drive South, Building C, Suite 310
Englewood, CO 80112
(303) 858-8358
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Deyan Spiridonov, Esq.
Teri OBrien, Esq.
Paul Hastings LLP
4747
Executive Drive, 12th Floor
San Diego, CA 92121
(858) 458-3000
From time to
time after the effective date of this Registration Statement.
(Approximate date of commencement of proposed sale to the public)
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.
x
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 a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, 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, 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.
|
|
|
|
|
|
|
Large accelerated filer
|
|
¨
|
|
Accelerated filer
|
|
¨
|
|
|
|
|
Non-accelerated filer
|
|
x
(Do not check if a smaller reporting company)
|
|
Smaller reporting company
|
|
¨
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
Title of Each Class of
Securities To Be Registered
|
|
Amount
to be
Registered
|
|
Proposed
Maximum
Aggregate
Offering Price
|
|
Amount of
Registration Fee
|
Unallocated Securities(1)
|
|
|
|
|
|
|
Common Stock, par value $0.01 per share
|
|
|
|
(2)
|
|
(3)
|
Preferred Stock, par value $0.01 per share
|
|
|
|
(2)
|
|
(3)
|
Debt Securities
|
|
|
|
(2)
|
|
(3)
|
Warrants
|
|
|
|
(2)
|
|
(3)
|
Units
|
|
|
|
(2)
|
|
(3)
|
Common Stock, par value $0.01 per share(4)
|
|
15,076,495
|
|
|
|
(5)
|
Total
|
|
|
|
$130,000,000
|
|
$7,755.41(2)(6)
|
|
|
(1)
|
Any unallocated securities registered hereunder may be sold separately or as units with other unallocated securities registered hereunder.
|
(2)
|
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants to purchase
common stock, preferred stock and/or debt securities, and such indeterminate number of units as may be sold by the registrant from time to time, which together shall have an aggregate initial offering price not to exceed $130,000,000. If any debt
securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount at maturity as shall result in an aggregate offering price not to exceed $130,000,000, less the aggregate
dollar amount of all securities previously issued hereunder. The proposed maximum offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered
hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities
that provide for conversion or exchange, upon exercise of warrants or pursuant to the anti-dilution provisions of any of such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities
Act), the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends
or similar transactions. The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not
specified as to each class of security pursuant to Rule 457(o) under the Securities Act.
|
(3)
|
In accordance with Rule 415(a)(6) under the Securities Act, this registration statement includes unallocated securities in an aggregate amount of $52,985,007.20 (Unsold Securities) that were previously
registered under the Prior Registration Statement (as defined below) but which remain unsold as of the date of this registration statement. In connection with registration of the Unsold Securities on the Prior Registration Statement, the registrant
paid a registration fee of $7,227.15, which fee will continue to be applied to the Unsold Securities. Accordingly, the amount of the registration fee due upon filing of this registration statement has been calculated based on the proposed maximum
offering price, after subtracting the dollar amount of the Unsold Securities, of $77,014,992.80 of additional securities registered on this registration statement. In accordance with SEC rules, the registrant may continue to offer and sell the
Unsold Securities during the grace period afforded by Rule 415(a)(5). If the registrant sells any Unsold Securities during the grace period, the registrant will identify in a pre-effective amendment to this Registration Statement the new amount
of Unsold Securities to be carried forward to this Registration Statement in reliance upon Rule 415(a)(6).
|
(4)
|
In accordance with Rule 429 under the Securities Act, the prospectus contained herein also relates to and will be used in connection with the issuance of up to 15,076,495 shares of common stock issuable upon the
exercise of certain of the registrants outstanding warrants, as more fully described herein. If such warrants are exercised and such shares of common stock are issued and sold before the effective date of this registration statement, such
shares of common stock will not be included in the prospectus contained herein.
|
(5)
|
All applicable filing fees relating to the shares of common stock underlying the registrants outstanding warrants were paid at the timing of filing the Prior Registration Statement.
|
(6)
|
$5,904.72 of which was previously paid.
|
Pursuant to Rule 429(a) under the Securities Act, the prospectus
included in this registration statement is a combined prospectus relating to 15,076,495 shares of common stock underlying certain of the registrants outstanding warrants, as more fully described herein. Pursuant to Rule 429(b), this
registration statement, upon effectiveness, also constitutes a post-effective amendment to the registrants registration statement on Form S-3, File No. 333-187893, initially filed on April 12, 2013, amended on May 13, 2013 and declared
effective on May 15, 2013 (the Prior Registration Statement), which post-effective amendment shall hereafter become effective concurrently with the effectiveness of this registration statement and in accordance with Section 8(c) of the
Securities Act.
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 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We 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 is not soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 1, 2016
PROSPECTUS
$130,000,000
Common Stock
Preferred
Stock
Debt Securities
Warrants
Units
15,076,495 Shares of Common Stock
Issuable Upon Exercise of Outstanding Warrants
From time to
time, we may offer up to $130,000,000 of any combination of the securities described in this prospectus, either individually or in units. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon
conversion of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants. We will provide the specific terms of these offerings and securities in one or more supplements to this prospectus.
This prospectus also relates to the issuance of 15,076,495 shares of our common stock (the Warrant Shares) upon exercise of certain
of our outstanding Warrants (as defined below under the heading Description of Outstanding Warrants). Such Warrants and Warrant Shares were registered under our Registration Statement on Form S-3 (File No. 333-187893), as amended on May
13, 2013 and initially declared effective by the Securities and Exchange Commission (the SEC) on May 15, 2013 (the Prior Registration Statement).
We may authorize one or more free writing prospectuses to be provided to you in connection with these offerings. Any prospectus supplements
and/or related free writing prospectuses may add, update or change information contained in this prospectus. You should carefully read this prospectus, any applicable prospectus supplement and any related free writing prospectus, as well as any
documents incorporated by reference, before buying any of the securities being offered.
Our common stock is traded on the NASDAQ Capital
Market under the symbol GEVO. On June 30, 2016, the last reported sale price of our common stock on the NASDAQ Capital Market was $0.59. The applicable prospectus supplement will contain information, where applicable, as to any other
listing, if any, on the NASDAQ Capital Market or any securities market or other exchange of the securities covered by the applicable prospectus supplement.
Investing in
our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading
Risk Factors
contained in the applicable prospectus supplement and any related
free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.
This
prospectus may not be used to consummate a sale of any securities unless accompanied by the applicable prospectus supplement.
The
securities may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the
section entitled Plan of Distribution in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such agents or underwriters and any
applicable fees, commissions, discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a
prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date
of this prospectus is , 2016.
TABLE OF CONTENTS
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission
(SEC) utilizing a shelf registration process. Under this shelf registration process, we may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such
securities, either individually or in units, in one or more offerings, up to a total dollar amount of $130,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of
securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of those securities. This prospectus also relates to the issuance of up to 15,076,495 Warrant Shares upon exercise
of certain of our outstanding Warrants. The Warrants and the Warrant Shares were registered under the Prior Registration Statement. We may authorize one or more free writing prospectuses to be provided to you that may contain material information
relating to these offerings. We may also add or update in the prospectus supplement (and in any related free writing prospectus that we may authorize to be provided to you) any of the information contained in this prospectus or in the documents that
we have incorporated by reference into this prospectus. We urge you to carefully read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as
described under the heading Where You Can Find Additional Information, before buying any of the securities being offered. THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY THE APPLICABLE
PROSPECTUS SUPPLEMENT.
You should rely only on the information that we have provided or incorporated by reference in this prospectus, any
applicable prospectus supplement and any related free writing prospectus that we may authorize to be provided to you. We have not authorized anyone to provide you with different information. No dealer, salesperson or other person is authorized to
give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. You must not rely on any unauthorized
information or representation. This prospectus is an offer to sell only the securities offered hereby, and only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus, any
applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document and that any information we have incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading Where You Can Find Additional Information.
CONVENTIONS THAT APPLY TO THIS PROSPECTUS
This prospectus contains estimates and other information concerning our target markets that are based on industry publications, surveys and
forecasts, including those generated by SRI Consulting, a division of Access Intelligence, LLC, Chemical Market Associates, Inc., the U.S. Energy Information Association (the EIA), the International Energy Agency (the IEA),
the Renewable Fuels Association (the RFA), and Nexant, Inc. (Nexant). Certain target market sizes presented in this prospectus have been calculated by us (as further described below) based on such information. This
information involves a number of assumptions and limitations and you are cautioned not to give undue weight to this information. Please read the section of this prospectus entitled Cautionary Statement Regarding Forward-Looking
Statements. The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those described under the heading Risk Factors contained in the applicable prospectus
supplement and any related free writing prospectus, and in our most recent annual report on Form 10-K and any subsequently filed quarterly reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC. These
and other factors could cause actual results to differ materially from those expressed in these publications, surveys and forecasts.
With
respect to calculation of product market volumes:
|
|
|
product market volumes are provided solely to show the magnitude of the potential markets for isobutanol and the products derived from it. They are not intended to be projections of our actual isobutanol production or
sales;
|
|
|
|
product market volume calculations for fuels markets are based on data available for the year 2013 (the most current data available from the IEA);
|
1
|
|
|
product market volume calculations for chemicals markets are based on data available for the year 2012 (the most current data available from Nexant); and
|
|
|
|
volume data with respect to target market sizes is derived from data included in various industry publications, surveys and forecasts generated by the EIA, the IEA and Nexant.
|
We have converted these market sizes into volumes of isobutanol as follows:
|
|
|
we calculated the size of the market for isobutanol as a gasoline blendstock and oxygenate by multiplying the world gasoline market volume by an estimated 12.5% by volume isobutanol blend ratio;
|
|
|
|
we calculated the size of the specialty chemicals markets by substituting volumes of isobutanol equivalent to the volume of products currently used to serve these markets;
|
|
|
|
we calculated the size of the petrochemicals and hydrocarbon fuels markets by calculating the amount of isobutanol that, if converted into the target products at theoretical yield, would be needed to fully serve these
markets (in substitution for the volume of products currently used to serve these markets); and
|
|
|
|
for consistency in measurement, where necessary we converted all market sizes into gallons.
|
Conversion into gallons for the fuels markets is based upon fuel densities identified by Air BP Ltd. and the American Petroleum Institute.
2
GEVO, INC.
Gevo, Inc. is a renewable chemicals and next generation biofuels company. We have developed proprietary technology that uses a combination of
synthetic biology, metabolic engineering, chemistry and chemical engineering to focus primarily on the production of isobutanol, as well as related products from renewable feedstocks. Isobutanol is a four-carbon alcohol that can be sold
directly for use as a specialty chemical in the production of solvents, paints and coatings or as a value-added gasoline blendstock. Isobutanol can also be converted into butenes using dehydration chemistry deployed in the refining and
petrochemicals industries today. The convertibility of isobutanol into butenes is important because butenes are primary hydrocarbon building blocks used in the production of hydrocarbon fuels, lubricants, polyester, rubber, plastics, fibers and
other polymers. We believe that the products derived from isobutanol have potential applications in substantially all of the global hydrocarbon fuels markets and in approximately 40% of the global petrochemicals markets.
In order to produce and sell isobutanol made from renewable sources, we have developed the Gevo Integrated Fermentation Technology
®
(GIFT
®
), an integrated technology platform for the efficient production and separation of isobutanol. GIFT
®
consists of two components, proprietary biocatalysts which convert sugars derived from multiple renewable feedstocks into isobutanol through fermentation, and a proprietary separation unit which
is designed to continuously separate isobutanol from water during the fermentation process. We developed our technology platform to be compatible with the existing approximately 25 billion gallons per year of global operating ethanol production
capacity, as estimated by the RFA.
GIFT
®
is designed to permit (i) the retrofit
of existing ethanol capacity to produce isobutanol, ethanol or both products simultaneously or (ii) the addition of renewable isobutanol or ethanol production capabilities to a facilitys existing ethanol production by adding additional
fermentation capacity side-by-side with the facilitys existing ethanol fermentation capacity (collectively referred to as Retrofit). Having the flexibility to switch between the production of isobutanol and ethanol, or produce both
products simultaneously, should allow us to optimize asset utilization and cash flows at a facility by taking advantage of fluctuations in market conditions. GIFT
®
is also designed to allow
relatively low capital expenditure Retrofits of existing ethanol facilities, enabling a relatively rapid route to isobutanol production from the fermentation of renewable feedstocks. We believe that our production route will be cost-efficient, will
enable relatively rapid deployment of our technology platform and allow our isobutanol and related renewable products to be economically competitive with many of the petroleum-based products used in the chemicals and fuels markets today.
We were incorporated in Delaware in June 2005 under the name Methanotech, Inc. and filed an amendment to our certificate of incorporation
changing our name to Gevo, Inc. on March 29, 2006. On April 20, 2015, the Company effected a reverse split of its common stock at a ratio of one-for-fifteen. Unless otherwise indicated, all share amounts, per share data, share prices,
exercise prices and conversion rates set forth in this prospectus have, where applicable, been adjusted retroactively to reflect this reverse stock split.
Our principal executive offices are located at 345 Inverness Drive South, Building C, Suite 310, Englewood, CO 80112, and our telephone number
is (303) 858-8358. We maintain an Internet website at
www.gevo.com
. Information contained in or accessible through our website does not constitute part of this prospectus.
Unless otherwise mentioned or unless the context requires otherwise, all references in this prospectus to we, us,
our, the Company and Gevo refer to Gevo, Inc., a Delaware corporation, and its wholly owned or indirect subsidiaries, and their predecessors.
3
RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the
heading Risk Factors contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents, including our most recent annual report on
Form 10-K,
and any subsequent quarterly reports on
Form 10-Q
and current reports on
Form 8-K
incorporated herein
by reference or filed by us after the date of this prospectus, that are incorporated by reference into this prospectus. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities. Additional
risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations and financial condition.
4
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference herein
contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the Securities Act) and Section 21E of the Securities Exchange Act of 1934, as amended (the Exchange Act). These
statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, levels of activity, performance or achievements to differ materially from those expressed or implied by the forward-looking
statements. Forward-looking statements may include, but are not limited to, statements relating to the achievement of advances in our technology platform, the success of our Retrofit production model, the availability of suitable and
cost-competitive feedstocks, our ability to gain market acceptance for our products, the expected cost-competitiveness and relative performance attributes of our isobutanol and the products derived from it, additional competition, changes in
economic conditions, the future price and volatility of petroleum and products derived from petroleum and statements regarding our intended uses of the proceeds of the securities offered hereby. In some cases, you can identify forward-looking
statements by terminology such as may, will, should, expect, plan, anticipate, believe, estimate, predict, potential or
continue, the negative of such terms or other comparable terminology.
Forward-looking statements reflect our current views
about future events, are based on assumptions, and are subject to known and unknown risks and uncertainties. Many important factors could cause actual results, performance or achievements to differ materially from the results, performance or
achievements expressed in or implied by our forward-looking statements, including the factors listed below. Many of the factors that will determine future results, performance or achievements are beyond our ability to control or predict. The
following are important factors, among others, that could cause actual results, performance or achievements to differ materially from the results, performance or achievements reflected in our forward-looking statements:
|
|
|
our ability to successfully commercialize isobutanol and the products derived from it;
|
|
|
|
our ability to produce commercial quantities of isobutanol in a timely and economic manner;
|
|
|
|
unexpected delays, operational difficulties, cost-overruns or failures in the Retrofit process;
|
|
|
|
our ability to successfully identify and acquire access to additional facilities suitable for efficient Retrofitting;
|
|
|
|
our ability to market our isobutanol to potential customers;
|
|
|
|
fluctuations in the market price of petroleum;
|
|
|
|
fluctuations in the market price of corn and other feedstocks;
|
|
|
|
our ability to obtain regulatory approval for the use of our isobutanol in our target markets;
|
|
|
|
our ability to adequately protect our intellectual property, or the loss of some of our intellectual property rights through costly litigation or administrative proceedings;
|
|
|
|
our ability to transition our preliminary commitments into definitive supply and distribution agreements or to negotiate sufficient long-term supply agreements for our production of isobutanol; and
|
|
|
|
general economic conditions and inflation, interest rate movements and access to capital.
|
The
forward-looking statements contained herein reflect our views and assumptions only as of the date such forward-looking statements are made. You should not place undue reliance on forward-looking statements. Except as required by law, we assume no
responsibility for updating any forward-looking statements nor do we intend to do so. Our actual results, performance or achievements could differ materially from the results expressed in, or implied by, these forward-looking statements. The risks
included in this section are not exhaustive. Additional factors that could cause actual results to differ materially from those described in the forward-looking statements are set forth in under the heading Risk Factors contained in the
applicable prospectus supplement and any related free writing prospectus, and in our most recent annual report on Form 10-K and any subsequently filed quarterly reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings
with the SEC. You should carefully read both this prospectus, the applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading Where You
Can Find Additional Information, completely and with the understanding that our actual future results may be materially different from what we expect.
5
THE SECURITIES WE MAY OFFER
Unallocated Securities
With respect to
the unallocated securities to be offered under this prospectus, we may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or in units, with
a total value of up to $130,000,000 from time to time under this prospectus at prices and on terms to be determined by market conditions at the time of any offering. This prospectus provides you with a general description of the securities we may so
offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
|
|
|
designation or classification;
|
|
|
|
aggregate principal amount or aggregate offering price;
|
|
|
|
maturity, if applicable;
|
|
|
|
original issue discount, if any;
|
|
|
|
rates and times of payment of interest or dividends, if any;
|
|
|
|
redemption, conversion, exercise, exchange or sinking fund terms, if any;
|
|
|
|
restrictive covenants, if any;
|
|
|
|
voting or other rights, if any;
|
|
|
|
conversion prices, if any; and
|
|
|
|
important U.S. federal income tax considerations.
|
The prospectus supplement and any related
free writing prospectus that we may authorize to be provided to you may also add to or update the information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing
prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
We may sell such unallocated securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or
underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters, we will include in the applicable prospectus supplement:
|
|
|
the names of those agents or underwriters;
|
|
|
|
applicable fees, discounts and commissions to be paid to them;
|
|
|
|
details regarding over-allotment options, if any; and
|
|
|
|
the net proceeds to us.
|
Common Stock.
We may issue shares of our common stock
from time to time. The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Subject to preferences that may be applicable to any
outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably only those dividends as may be declared by our board of directors out of legally available funds. Upon our liquidation, dissolution or winding up,
holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock.
6
Preferred Stock.
We may issue shares of our preferred stock from time to time, in one or
more series. Under our amended and restated certificate of incorporation, our board of directors has the authority, without further action by stockholders, to designate up to 10,000,000 shares of preferred stock in one or more series and to fix the
rights, preferences, privileges, qualifications and restrictions granted to or imposed upon the preferred stock, including dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation preferences and sinking fund
terms, any or all of which may be greater than the rights of our common stock.
If we sell any series of preferred stock under this
prospectus, we will fix the designations, powers, preferences and rights of such series of preferred stock, as well as the qualifications, limitations or restrictions thereon, in the certificate of designation relating to that series. We will file
as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred
stock we are offering before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of
preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities.
We may issue debt securities from time to time, in one or more series, as either senior secured, senior unsecured or
subordinated debt or as senior secured, senior unsecured or subordinated convertible debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the
debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or our other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
The debt securities will be issued under one or more indentures, which are contracts between us and a national banking association or
other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be
provided to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. Forms of indentures have been filed as exhibits to the registration statement of which this
prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be
incorporated by reference from reports that we file with the SEC.
Warrants.
We may issue warrants for the purchase of common
stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. In
this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular
series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. We will file as an exhibit to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered.
We will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant
agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.
Units.
We may issue, in one or more series, units consisting of common stock, preferred stock, debt securities and/or warrants for
the purchase of common stock, preferred stock and/or debt securities in any combination. In this prospectus, we have summarized certain general features of the units. We urge you, however, to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you) related to the series of units being offered, as well as the complete unit agreement, if any, that contains the terms of the units. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement, if any, and any supplemental agreements that describe the terms of the series of units we are offering
before the issuance of the related series of units.
We may evidence each series of units by unit certificates. Units may also be issued
under a unit agreement that we enter into with a unit agent. We will indicate the name and address of the unit agent, if applicable, in the prospectus supplement relating to the particular series of units being offered.
Warrant Shares
This prospectus also relates to the issuance of the Warrant Shares, which were previously registered under the Prior Registration
Statement. The material terms of the Warrants are summarized herein, which summaries are qualified in their entirety by reference to the forms of warrants and warrant agreements incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. To the extent that the terms of the offering and issuance of the Warrant Shares materially differs from those terms disclosed in this prospectus, we may provide you with a prospectus supplement that
will contain specific information about the terms of such offering.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS
ACCOMPANIED BY THE APPLICABLE PROSPECTUS SUPPLEMENT.
7
RATIO OF EARNINGS TO FIXED CHARGES
The following summary is qualified by the more detailed information appearing in the computation table found in Exhibit 12.1 to the
registration statement of which this prospectus is part and the historical financial statements, including the notes to those financial statements, incorporated by reference in this prospectus.
Our earnings are inadequate to cover fixed charges. The following table sets forth the dollar amount of the coverage deficiency for all
periods (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Year Ended
|
|
|
3/31/2016
|
|
|
12/31/2015
|
|
|
12/31/2014
|
|
|
12/31/2013
|
|
|
12/31/2012
|
|
|
12/31/2011
|
|
Ratio of Earnings to Fixed Charges
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deficiency of Earnings Available to Cover Fixed Charges
|
|
|
$(3,605
|
)
|
|
$
|
(36,194
|
)
|
|
$
|
(41,145
|
)
|
|
$
|
(67,006
|
)
|
|
$
|
(62,044
|
)
|
|
$
|
(48,511
|
)
|
USE OF PROCEEDS
Except as described in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you, we
currently intend to use the net proceeds from the sale of the securities offered hereby to improve the production of isobutanol and related products at our existing facility, acquire access to additional ethanol facilities through direct
acquisition, tolling arrangements or joint ventures and to Retrofit those facilities to produce isobutanol and related products. A portion of the net proceeds from this offering may also be used for general corporate purposes, including, among other
things, working capital requirements and potential repayment of indebtedness that may be outstanding at the time of any offering under this prospectus. Pending these uses, we expect to invest the net proceeds in demand deposit accounts or
short-term, investment-grade securities.
8
DESCRIPTION OF CAPITAL STOCK
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 250,000,000 shares of common stock, par value $0.01 per share, and 10,000,000 shares of preferred
stock, par value $0.01 per share, issuable in one or more series designated by our board of directors. As of June 30, 2016, there were 89,234,771 shares of common stock and no shares of preferred stock outstanding.
Common Stock
The holders of our common
stock have one vote per share. Holders of common stock are not entitled to vote cumulatively for the election of directors. Generally, all matters to be voted on by stockholders must be approved by a majority, or, in the case of election of
directors, by a plurality, of the votes cast at a meeting at which a quorum is present, voting together as a single class, subject to any voting rights granted to holders of any then outstanding preferred stock. Subject to preferences that may be
applicable to any then outstanding preferred stock, holders of our common stock are entitled to participate equally in dividends when and as dividends may be declared by our board of directors out of funds legally available for the payment of
dividends. In the event of our voluntary or involuntary liquidation, dissolution or winding up, the prior rights of our creditors and the liquidation preference of any preferred stock then outstanding must first be satisfied. The holders of common
stock will be entitled to share in the remaining assets on a pro rata basis. No shares of common stock are subject to redemption or have redemptive rights to purchase additional shares of common stock.
Our common stock is listed on the NASDAQ Capital Market under the symbol GEVO.
Preferred Stock
Our amended and restated
certificate of incorporation provides that we may issue shares of preferred stock from time to time in one or more series. Our board of directors is authorized to fix the voting rights, if any, designations, powers, preferences, qualifications,
limitations and restrictions thereof, applicable to the shares of each series of preferred stock. The board of directors may, without stockholder approval, issue preferred stock with voting and other rights that could adversely affect the voting
power and other rights of the holders of our common stock, including the likelihood that such holders will receive dividend payments and payments upon liquidation, and could have anti-takeover effects, including preferred stock or rights to acquire
preferred stock in connection with implementing a stockholder rights plan. The ability of the board of directors to issue preferred stock without stockholder approval could have the effect of delaying, deferring or preventing a change of control or
the removal of our existing management. There are currently no shares of preferred stock outstanding.
Anti-Takeover Provisions
The Delaware General Corporation Law (DGCL), our amended and restated certificate of incorporation, and our amended and restated
bylaws contain provisions that could discourage or make more difficult a change in control of Gevo, including an acquisition of Gevo by means of a tender offer, a proxy contest and removal of our incumbent officers and directors, without the support
of our board of directors. A summary of these provisions follows.
Statutory Business Combination Provision
We are subject to Section 203 of the DGCL, which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any
business combination with an interested stockholder for a period of three years following the time that such stockholder became an interested stockholder, unless:
|
|
|
the board of directors of the corporation approves either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder, prior to the time the interested stockholder
attained that status;
|
|
|
|
upon the closing of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding, for purposes of determining the number of shares outstanding, those shares owned by persons who are directors and also officers and by employee stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
|
|
|
|
at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at
least
66-2/3%
of the outstanding voting stock that is not owned by the interested stockholder.
|
9
With certain exceptions, an interested stockholder is a person or group who or which
owns 15% or more of the corporations outstanding voting stock (including any rights to acquire stock pursuant to an option, warrant, agreement, arrangement or understanding, or upon the exercise of conversion or exchange rights, and stock with
respect to which the person has voting rights only), or is an affiliate or associate of the corporation and was the owner of 15% or more of such voting stock at any time within the previous three years.
In general, Section 203 defines a business combination to include:
|
|
|
any merger or consolidation involving the corporation and the interested stockholder;
|
|
|
|
any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
|
|
|
|
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
|
|
|
|
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or
|
|
|
|
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
|
A Delaware corporation may opt out of this provision with an express provision in its original certificate of incorporation or an
express provision in its amended and restated certificate of incorporation or bylaws resulting from a stockholders amendment approved by at least a majority of the outstanding voting shares. However, Gevo has not opted out of this
provision. Section 203 could prohibit or delay mergers or other takeover or change-in-control attempts and, accordingly, may discourage attempts to acquire Gevo.
Election and Removal of Directors
Our
amended and restated certificate of incorporation provides for our board of directors to be divided into three classes, with staggered three-year terms. Only one class of directors is elected at each annual meeting of our stockholders, with the
other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rights, our stockholders holding a majority of the shares of common stock outstanding are able to elect all of
our directors. Directors may be removed only with cause by the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote on such removal.
No Stockholder Action by Written Consent
Our amended and restated certificate of incorporation and our amended and restated bylaws provide that any action required or permitted to be
taken by the holders of common stock at an annual or special meeting of stockholders must be effected at a duly called meeting and may not be taken or effected by written consent of the stockholders.
Stockholder Meetings
Under our amended
and restated certificate of incorporation and our amended and restated bylaws, only the board of directors, acting pursuant to a resolution adopted by a majority of the directors then in office, may call a special meeting of the stockholders, and
any business conducted at any special meeting will be limited to the purpose or purposes specified in the notice for such special meeting.
Requirements for Advance Notification of Stockholder Nominations and Proposals
In order for our stockholders to bring nominations or business before an annual meeting properly, they must comply with certain notice
requirements as provided by our amended and restated bylaws. Typically, in order for such notices to be
10
timely, they must be provided to us not earlier than the close of business on the 120th day prior to the one-year anniversary of the preceding years annual meeting and not later than
the close of business on the 90th day prior to the one-year anniversary of the preceding years annual meeting. For such notices to be timely in the event the annual meeting is advanced more than 30 days prior to or delayed by more
than 70 days after the one-year anniversary of the preceding years annual meeting, notice must be provided to us not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or, if later, the 10th day following the day on which public announcement of the date of such meeting is first made.
Amendment of Charter Provisions
The
affirmative vote of the holders of at least
66-2/3%
of the voting power of all of the then-outstanding shares of our voting stock, voting together as a single class, is required to, among other things, alter,
amend or repeal certain provisions of our amended and restated certificate of incorporation, including those related to the classification of our board of directors, the amendment of our bylaws and certificate of incorporation, restrictions against
stockholder actions by written consent, the designated parties entitled to call a special meeting of the stockholders and the indemnification of officers and directors.
Our amended and restated bylaws may only be amended (or new bylaws adopted) by the board of directors or the affirmative vote of the holders
of at least
66-2/3%
of the voting power of all of the then-outstanding shares of our voting stock.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company. Its address
is 6201 15th Avenue, Brooklyn, New York 11219 and its telephone number is (800) 937-5449. The transfer agent for any series of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement for
that series.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt.
While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus
supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indentures, we also are referring to any supplemental
indentures that specify the terms of a particular series of debt securities.
We will issue the senior debt securities under the senior
indenture that we will enter into with the trustee named in the senior indenture. We will issue the subordinated debt securities under the subordinated indenture that we will enter into with the trustee named in the subordinated indenture. The
indentures will be qualified under the Trust Indenture Act of 1939. We use the term debenture trustee to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable. We have filed
forms of indentures as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the
registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses
related to the debt securities that we may offer under this prospectus, as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated
indenture are identical.
General
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
11
|
|
|
the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
|
|
|
|
any limit on the amount that may be issued;
|
|
|
|
whether or not we will issue the series of debt securities in global form, the terms and who the depositary will be;
|
|
|
|
whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a U.S. person for tax purposes, and whether we can redeem the debt securities if we have to
pay such additional amounts;
|
|
|
|
the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest
payment dates or the method for determining such dates;
|
|
|
|
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
|
|
|
|
the terms of the subordination of any series of subordinated debt;
|
|
|
|
the place where payments will be payable;
|
|
|
|
restrictions on transfer, sale or other assignment, if any;
|
|
|
|
our right, if any, to defer payment of interest and the maximum length of any such deferral period;
|
|
|
|
the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption
provisions;
|
|
|
|
the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holders option to purchase, the series of
debt securities and the currency or currency unit in which the debt securities are payable;
|
|
|
|
whether the indenture will restrict our ability and/or the ability of our subsidiaries to:
|
|
|
|
incur additional indebtedness;
|
|
|
|
issue additional securities;
|
|
|
|
pay dividends and make distributions in respect of our capital stock and/or the capital stock of our subsidiaries;
|
|
|
|
make investments or other restricted payments;
|
|
|
|
sell, transfer or otherwise dispose of assets;
|
|
|
|
enter into sale-leaseback transactions;
|
|
|
|
engage in transactions with stockholders and affiliates;
|
|
|
|
issue or sell stock of our subsidiaries; or
|
|
|
|
effect a consolidation or merger;
|
12
|
|
|
whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based,
asset-based
or other financial ratios;
|
|
|
|
information describing any book-entry features;
|
|
|
|
provisions for a sinking fund purchase or other analogous fund, if any;
|
|
|
|
the applicability of the provisions in the indenture on discharge;
|
|
|
|
whether the debt securities are to be offered at a price such that they will be deemed to be offered at an original issue discount as defined in paragraph (a) of Section 1273 of the Internal
Revenue Code;
|
|
|
|
the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
|
|
|
|
the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
|
|
|
|
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or covenants provided with respect to the debt securities, and any
terms that may be required by us or advisable under applicable laws or regulations; and
|
|
|
|
any other terms which shall not be inconsistent with the indentures.
|
The notes may be issued
as original issue discount securities. An original issue discount security is a note, including any zero-coupon note, which:
|
|
|
is issued at a price lower than the amount payable upon its stated maturity; and
|
|
|
|
provides that upon redemption or acceleration of the maturity, an amount less than the amount payable upon the stated maturity, shall become due and payable.
|
U.S. federal income tax consequences applicable to notes sold at an original issue discount will be described in the applicable prospectus
supplement. In addition, U.S. federal income tax or other consequences applicable to any notes which are denominated in a currency or currency unit other than U.S. dollars may be described in the applicable prospectus supplement.
Under the indentures, we will have the ability, in addition to the ability to issue notes with terms different from those of notes previously
issued, without the consent of the holders, to reopen a previous issue of a series of notes and issue additional notes of that series, unless the reopening was restricted when the series was created, in an aggregate principal amount determined by
us.
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our
common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or
our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquiror of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or
13
exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Events of Default Under the Indentures
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of
default under the indentures with respect to any series of debt securities that we may issue:
|
|
|
if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended or deferred;
|
|
|
|
if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable and the time for payment has not been extended or delayed;
|
|
|
|
if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for
90 days after we receive notice from the debenture trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series;
|
|
|
|
if specified events of bankruptcy, insolvency or reorganization occur; and
|
|
|
|
any other event of default described in the applicable prospectus supplement.
|
If an event of
default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the second to last bullet point above, the debenture trustee or the holders of at least 25% in aggregate principal amount of
the outstanding debt securities of that series, by notice to us in writing, and to the debenture trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable
immediately. If an event of default results from the occurrence of a specified event of bankruptcy, insolvency or reorganization with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then
outstanding shall be due and payable without any notice or other action on the part of the debenture trustee or any holder.
The holders
of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of
principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any such waiver shall cure the default or event of default.
Subject to the terms of the applicable indenture, if an event of default under an indenture shall occur and be continuing, the debenture
trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the debenture trustee
reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the debenture
trustee, or exercising any trust or power conferred on the debenture trustee, with respect to the debt securities of that series, provided that:
|
|
|
the direction so given by the holders is not in conflict with any law or the applicable indenture; and
|
|
|
|
subject to its duties under the Trust Indenture Act of 1939, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the
proceeding.
|
A holder of the debt securities of any series will have the right to institute a proceeding under an indenture
or to appoint a receiver or trustee, or to seek other remedies only if:
|
|
|
the holder has given written notice to the debenture trustee of a continuing event of default with respect to that series;
|
14
|
|
|
the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to
institute the proceeding as trustee; and
|
|
|
|
the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions
within 60 days after the notice, request and offer.
|
These limitations do not apply to a suit instituted by a holder of
debt securities if we default in the payment of the principal, premium, if any, or accrued interest on, the debt securities.
We will
periodically file statements with the debenture trustee regarding our compliance with specified covenants in the indentures.
Modification of
Indenture; Waiver
We and the debenture trustee may change an indenture without the consent of any holders with respect to specific
matters:
|
|
|
to fix any ambiguity, defect or inconsistency in the indenture;
|
|
|
|
to comply with the provisions described above under the heading Description of Debt SecuritiesConsolidation, Merger or Sale;
|
|
|
|
to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act of 1939;
|
|
|
|
to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in such indenture;
|
|
|
|
to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under the heading Description of Debt SecuritiesGeneral, to establish the
form of any certifications required to be furnished pursuant to the terms of an indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
|
|
|
|
to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
|
|
|
|
to provide for uncertificated debt securities in addition to or in place of certificated debt securities and to make all appropriate changes for such purpose;
|
|
|
|
to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an event of default; or
|
|
|
|
to change anything that does not materially adversely affect the interests of any holder of debt securities of any series; provided that any amendment made solely to conform the provisions of the indenture to the
corresponding description of the debt securities contained in the applicable prospectus or prospectus supplement shall be deemed not to adversely affect the interests of the holders of such debt securities.
|
In addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular
series of debt securities, we and the debenture trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
|
|
|
extending the fixed maturity of the series of debt securities;
|
15
|
|
|
reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any debt securities;
|
|
|
|
reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver of the applicable indenture or notes or for waiver of compliance with certain
provisions of the applicable indenture or for waiver of certain defaults;.
|
|
|
|
changing any of our obligations to pay additional amounts;
|
|
|
|
reducing the amount of principal of an original issue discount security or any other note payable upon acceleration of the maturity thereof;
|
|
|
|
changing the currency in which any note or any premium or interest is payable;
|
|
|
|
impairing the right to enforce any payment on or with respect to any note;
|
|
|
|
adversely changing the right to convert or exchange, including decreasing the conversion rate or increasing the conversion price of, such note, if applicable;
|
|
|
|
in the case of the subordinated indenture, modifying the subordination provisions in a manner adverse to the holders of the subordinated notes;
|
|
|
|
if the notes are secured, changing the terms and conditions pursuant to which the notes are secured in a manner adverse to the holders of the secured notes;
|
|
|
|
reducing the requirements contained in the applicable indenture for quorum or voting;
|
|
|
|
changing any of our obligations to maintain an office or agency in the places and for the purposes required by the indentures; or
|
|
|
|
modifying any of the above provisions set forth in this paragraph.
|
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
|
|
|
register the transfer or exchange of debt securities of the series;
|
|
|
|
replace stolen, lost or mutilated debt securities of the series;
|
|
|
|
maintain paying agencies;
|
|
|
|
hold monies for payment in trust;
|
|
|
|
recover excess money held by the debenture trustee;
|
|
|
|
compensate and indemnify the debenture trustee; and
|
|
|
|
appoint any successor trustee.
|
In order to exercise our rights to be discharged, we must
deposit with the debenture trustee money or government obligations sufficient to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will
issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide
that we may issue debt securities of a series in temporary or permanent global form and as book-entry
16
securities that will be deposited with, or on behalf of, The Depository Trust Company (DTC) or another depositary named by us and identified in a prospectus supplement with respect to
that series. See the section entitled Legal Ownership of Securities for a further description of the terms relating to any book-entry securities.
At the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of
the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service charge for any
registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the
applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
|
|
|
issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt
securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
|
|
|
|
register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
|
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given to it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of, and any premium and interest on, the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the
applicable prospectus supplement, we will designate the corporate trust office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal of, or any premium or interest on, any debt
securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
17
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act of 1939 is applicable.
Subordination of Subordinated Debt Securities
The subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other
indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue, nor does it limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. While the terms summarized below will apply generally to any warrants that we may offer, we
will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the SEC, the form of warrant agreement, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering before the issuance of the related series of warrants. The following
summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of
warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplements related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and
the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms of the series of warrants being offered, including:
|
|
|
the offering price and aggregate number of warrants offered;
|
|
|
|
the currency for which the warrants may be purchased;
|
|
|
|
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
|
|
|
|
if applicable, the date on and after which the warrants and the related securities will be separately transferable;
|
|
|
|
in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which, and currency in which, this principal amount of debt
securities may be purchased upon such exercise;
|
|
|
|
in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such exercise;
|
|
|
|
the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
|
|
|
|
the terms of any rights to redeem or call the warrants;
|
18
|
|
|
any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
|
|
|
|
the dates on which the right to exercise the warrants will commence and expire;
|
|
|
|
the manner in which the warrant agreements and warrants may be modified;
|
|
|
|
a discussion of any material or special U.S. federal income tax consequences of holding or exercising the warrants;
|
|
|
|
the terms of the securities issuable upon exercise of the warrants; and
|
|
|
|
any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
|
Unless we otherwise indicate in the applicable prospectus supplement, before exercising their warrants, holders of warrants will not have any
of the rights of holders of the securities purchasable upon such exercise, including:
|
|
|
in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on the debt securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
|
|
|
|
in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
|
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the specified
time on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the
warrant certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant agent or the Company, as applicable, in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent upon exercise.
Upon receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised,
then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide
otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the
applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
19
DESCRIPTION OF UNITS
We may issue, in one more series, units consisting of common stock, preferred stock, debt securities and/or warrants for the purchase of
common stock, preferred stock and/or debt securities in any combination. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units
in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the SEC, the form of unit agreement, if any, that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms
and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement, if any, and any supplemental agreements applicable to a particular series of units, if any. We urge you to read
the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement, if any, and any supplemental agreements, if
any, that contain the terms of the units.
General
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued, if any, may provide that the securities included in the unit may not be held or transferred separately, at any time or at
any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units being
offered, including:
|
|
|
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
|
|
|
|
any provisions of any governing unit agreement that differ from those described below; and
|
|
|
|
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
|
The provisions described in this section, as well as those described under the headings Description of Capital Stock,
Description of Debt Securities and Description of Warrants will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance in Series
We may issue units in
such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent, if any, will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of
agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement,
if any, or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent, if any, or the holder of any other unit,
enforce by appropriate legal action its rights as a holder under any security included in the unit.
Title
We, and any unit agent and any of their agents, may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary. See the section entitled Legal Ownership of Securities below.
20
DESCRIPTION OF OUTSTANDING WARRANTS
In December 2013, we issued warrants to purchase 1,420,250 shares of our common stock (the 2013 Warrants) in a firm commitment
underwritten public offering. The 2013 Warrants were exercisable from the date of the original issuance and will expire on December 16, 2018. The 2013 Warrants contain certain anti-dilution protections, as more fully described below, and have an
exercise price of $3.57 as of the date of this prospectus. The offering and sale of the 2013 Warrants, and the shares of common stock underlying the 2013 Warrants, were registered under the Prior Registration Statement.
In August 2014, we issued warrants to purchase 2,000,000 shares of our common stock (the 2014 Warrants) in a firm commitment
underwritten public offering. The 2014 Warrants were exercisable from the date of the original issuance and will expire on August 5, 2019. The 2014 Warrants contain certain anti-dilution protections, as more fully described below, and have an
exercise price of $2.51 as of the date of this prospectus. The offering and sale of the 2014 Warrants, and the shares of common stock underlying the 2014 Warrants, were registered under the Prior Registration Statement.
In February 2015, we issued Series A warrants to purchase 2,216,667 shares of our common stock (the Series A Warrants) in a
firm commitment underwritten public offering. The Series A Warrants were exercisable from the date of the original issuance and will expire on February 3, 2020. The Series A Warrants contain certain anti-dilution protections, as more fully
described below, and have an exercise price of $0.30 as of the date of this prospectus. The offering and sale of the Series A Warrants, and the shares of common stock underlying the Series A Warrants, were registered under the Prior Registration
Statement.
In May 2015, we issued Series C warrants to purchase 430,000 shares of our common stock (the Series C Warrants) in
a firm commitment underwritten public offering. The Series C Warrants were exercisable from the date of the original issuance and will expire on May 19, 2020. The Series C Warrants contain certain anti-dilution protections, as more fully
described below, and have an exercise price of $1.84 as of the date of this prospectus. The offering and sale of the Series C Warrants, and the shares of common stock underlying the Series C Warrants, were registered under the Prior Registration
Statement.
In December 2015, we issued Series D warrants to purchase 10,050,000 shares of our common stock (the Series D
Warrants) in a firm commitment underwritten public offering. The Series D Warrants were exercisable beginning on June 11, 2016 and will expire on December 11, 2020. The Series D Warrants have an exercise price of $0.10 as of the date of
this prospectus and the holders of Series D Warrants are not entitled to any further anti-dilution adjustments. The offering and sale of the Series D Warrants, and the shares of common stock underlying the Series D Warrants, were registered under
the Prior Registration Statement.
In April 2016, we issued Series F warrants to purchase 10,292,858 shares of our common stock (the
Series F Warrants) and Series H Warrants to purchase 20,585,716 shares of our common stock (the Series H Warrants and, together with the 2013 Warrants, the 2014 Warrants, the Series A Warrants, the Series C Warrants, the
Series D Warrants and the Series F Warrants, the Warrants) in a firm commitment underwritten public offering. The Series F Warrants will be exercisable beginning on October 1, 2016 and will expire on April 1, 2021. The Series F
Warrants contain certain anti-dilution protections, as more fully described below, and have an exercise price of $0.30 as of the date of this prospectus. The Series H Warrants were exercisable from the date of the original issuance, will expire on
October 1, 2016 and have an exercise price of $0.75 per share as of the date of this prospectus. The offering and sale of the Series F Warrants and the Series H Warrants, and the shares of common stock underlying the Series F Warrants and the
Series H Warrants, were registered under the Prior Registration Statement.
The Company has the right at any time during the term of the
Series D Warrants, Series F Warrants or Series H Warrants to reduce the then-existing exercise price of the Series D Warrants, Series F Warrants or Series H Warrants, respectively, to any amount and for any period of time deemed appropriate by our
board of directors.
21
As of the date of this prospectus, the following number of each series of Warrants remain
unexercised and outstanding:
|
|
|
|
|
2013 Warrants
|
|
|
1,115,476
|
|
2014 Warrants
|
|
|
389,229
|
|
Series A Warrants
|
|
|
228,332
|
|
Series C Warrants
|
|
|
430,000
|
|
Series D Warrants
|
|
|
43,600
|
|
Series F Warrants
|
|
|
10,292,858
|
|
Series H Warrants
|
|
|
2,557,000
|
|
Total
|
|
|
15,076,495
|
|
Exercise Mechanics
The Warrants may be exercised by delivering to the Company and/or the warrant agent, as applicable, a written notice of election to exercise,
appropriately completed, duly signed and delivered, and delivering to the Company cash payment of the exercise price, if applicable. Upon delivery of the written notice of election to exercise, appropriately completed and duly signed, and cash
payment of the exercise price, if applicable, on and subject to the terms and conditions of the Warrant or warrant agreement governing such series of Warrants, as applicable, we will deliver or cause to be delivered, to or upon the written order of
such holder, the number of whole shares of common stock to which the holder is entitled, which shares may be delivered in book-entry form. No fractional shares will be issued upon exercise of the Warrants. If a Warrant is exercised for fewer than
all of the shares of common stock for which such warrant may be exercised, then upon request of the holder and surrender of such Warrant, we may issue a new Warrant or warrant certificate exercisable for the remaining number of shares of common
stock.
If, and only if, a registration statement relating to the issuance of the Warrant Shares underlying any series of the Warrants is
not then effective or available, a holder of such series of Warrants may exercise such Warrants on a cashless basis, where the holder receives the net value of such Warrants in shares of common stock. However, if an effective registration statement
is available for the issuance of the shares underlying a series of Warrants, a holder of such series of Warrants may only exercise such Warrants through a cash exercise. Shares issued pursuant to a cashless exercise would be issued pursuant to the
exemption from registration provided by Section 3(a)(9) of the Securities Act, and thus the shares of common stock issued upon such cashless exercise would take on the characteristics of the Warrants being exercised, including, for purposes of
Rule 144(d) promulgated under the Securities Act, a holding period beginning from the original issuance date of such Warrants.
If we fail
to timely deliver shares of common stock pursuant to any exercise of any Series D Warrant, Series F Warrant or Series H Warrant, and such exercising holder elects to purchase shares of common stock (in an open market transaction or otherwise)
to deliver in satisfaction of a sale by such holder of all or a portion of the shares of common stock for which such Warrant was exercised, then we will be required to deliver, at the holders election, either (i) an amount in cash equal to the
full purchase price paid by the holder to acquire such alternative shares or (ii) (A) the shares of common stock for which the Series D Warrant, Series F Warrant or Series H Warrant, as applicable, was exercised and (B) an amount in cash
equal to the excess (if any) by which the price paid for the alternative shares exceeds the lowest closing sale price of our common stock during the period beginning on the exercise date and ending on the date such payment is delivered.
Notwithstanding the foregoing, if we are prohibited by restrictions contained in any of our credit agreements from making any payments described above in cash, we may instead satisfy any such payment obligation by delivering to the holder a number
of shares of common stock equal to the cash payment amount divided by 90% of the last volume weighted average price of our common stock on the date of such payment.
Fundamental or Extraordinary Transactions
If, at any time while the Warrants are outstanding, we directly or indirectly, in one or more related transactions, enter into a
fundamental transaction or extraordinary transaction, as described in the applicable Warrants or warrant agreements and generally including any merger with or into another entity, sale of all or substantially all of our
assets, tender offer or exchange offer, or reclassification of our common stock, then each holder shall become entitled to receive the same amount and kind of securities, cash or property as such holder would have been entitled to receive upon the
occurrence of such fundamental or extraordinary transaction if the holder had been, immediately prior to such fundamental or extraordinary transaction, the holder of the number of shares of common stock then issuable upon exercise of such
holders Warrants. Any successor to us, surviving entity or the corporation purchasing or otherwise acquiring such assets shall assume the obligation to deliver to the holder such alternate consideration, and the other obligations, under the
Warrants.
22
Additionally, in the event of an extraordinary transaction in which the 2013 Warrants, 2014
Warrants, Series A Warrants or Series C Warrants are assumed by a company that is not a publicly traded company, we or any successor entity will pay at the option of any holder of such Warrants, exercisable at any time concurrently with or
within 30 days after the consummation of the extraordinary transaction, an amount of cash equal to the value of such Warrants as determined in accordance with the Black Scholes option pricing model and the terms of such Warrants.
In the event of a fundamental transaction, we or the successor entity will, at the option of any holder of Series D Warrants,
Series F Warrants or Series H Warrants, exercisable prior to the date that is 30 days after the public announcement of the consummation of the fundamental transaction, purchase the unexercised portion of such Warrants for an amount of cash
equal to the value of such Warrants as determined in accordance with the Black Scholes option pricing model and the terms of such Warrants.
Anti-Dilution Adjustments
The exercise
price and the number and type of securities purchasable upon exercise of the Warrants are subject to adjustment upon certain corporate events, including certain combinations, consolidations, liquidations, mergers, recapitalizations,
reclassifications, reorganizations, stock dividends and stock splits, a sale of all or substantially all of our assets and certain other events.
The 2013 Warrants, 2014 Warrants and Series C Warrants contain broad-based weighted average anti-dilution protection upon the issuance of any
common stock, securities convertible into common stock or certain other issuances at a price below the then-existing exercise price of such Warrants, with certain exceptions; provided, however, that in no event will the exercise price of the 2013
Warrants, 2014 Warrants or Series C Warrants be less than $0.10 per share.
The Series A Warrants and Series F Warrants contain full
ratchet anti-dilution protection upon the issuance of any common stock, securities convertible into common stock or certain other issuances at a price below the then-existing exercise price of the Series A Warrants and/or Series F Warrants, as
applicable, with certain exceptions; provided, however, that in no event shall the exercise price of the Series F Warrants be less than $0.10 per share (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar
events).
The terms of the Warrants, including the anti-dilution protections described above, may make it difficult for us to raise
additional capital at prevailing market terms in the future.
Rights as a Stockholder
Except as set forth in the respective Warrants, the Warrants do not confer upon holders any voting or other rights as stockholders of the
Company.
If, at any time while the Series D Warrants, Series F Warrants or Series H Warrants are outstanding, we declare or make any
dividend or other distribution of our assets to holders of shares of our common stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options, evidence of
indebtedness or any other assets by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) or we grant, issue or sell any options, convertible securities or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of common stock (in each case, Distributed Property), then each holder of a Series D Warrant, Series F Warrant or Series H Warrant shall
receive, with respect to the shares of common stock issuable upon exercise of such Series D Warrant, Series F Warrant or Series H Warrant, the Distributed Property that such holder would have been entitled to receive had the holder been
the record holder of such number of shares of common stock issuable upon exercise of the Warrant immediately prior to the record date for such Distributed Property.
Ownership Limitation
Any exercise notice
with respect to 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants delivered by a holder thereof will be deemed automatically not to have been so delivered by such holder to the extent, but only to the extent, that delivery of
shares of our common stock or any other security otherwise deliverable upon such exercise
23
would result in such holder having a beneficial ownership, as determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder (Beneficial
Ownership), of our common stock or any other class of registered equity security (a Class) in excess of 19.999% of the number of outstanding shares of our common stock or such Class (the 19.999% Ownership Limitation).
Any purported delivery to any holder shall be void and have no effect to the extent, but only to the extent, that after such delivery, such holder would have Beneficial Ownership of our common stock or any such Class in excess of the 19.999%
Ownership Limitation.
Notwithstanding the foregoing, during any period of time in which the Beneficial Ownership of our common stock by
any holder of 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants is less than 10%, any exercise notice with respect to 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants delivered by such a holder will be deemed
automatically not to have been so delivered by such holder to the extent, but only to the extent, that delivery of shares of our common stock or any other security otherwise deliverable upon such exercise would result in such holder having a
Beneficial Ownership of our common stock or any other Class in excess of 9.999% of the number of outstanding shares of our common stock or such Class (the 9.999% Ownership Limitation). Any purported delivery to any such holder shall be
void and have no effect to the extent, but only to the extent, that after such delivery, such holder would have Beneficial Ownership of our common stock or any such Class in excess of the 9.999% Ownership Limitation.
Notwithstanding the foregoing, during any period of time in which the Beneficial Ownership of our common stock by any holder of 2013 Warrants,
2014 Warrants, Series A Warrants or Series C Warrants is less than 5%, any exercise notice with respect to 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants delivered by such a holder will be deemed automatically not to have been
so delivered by such holder to the extent, but only to the extent, that delivery of shares of our common stock or any other security otherwise deliverable upon such exercise would result in such holder having a Beneficial Ownership of our common
stock in excess of 4.999% of the number of outstanding shares of our common stock or such Class (the 4.999% Ownership Limitation). Any purported delivery to any such holder whose Beneficial Ownership of our common stock is less than 5%
shall be void and have no effect to the extent, but only to the extent, that after such delivery, such holder would have Beneficial Ownership of our common stock or any such Class in excess of the 4.999% Ownership Limitation.
By written notice to us, any holder of 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants may from time to time increase or
decrease either or both of the 9.999% Ownership Limitation or the 4.999% Ownership Limitation to any other percentage not in excess of the 19.999% Ownership Limitation; provided that any such increase will not be effective until the 61st day after
such notice is delivered to us.
Any exercise notice with respect to Series D Warrants, Series F Warrants or Series H Warrants delivered
by a holder thereof will be deemed automatically not to have been so delivered by such holder to the extent, but only to the extent, that delivery of shares of our common stock or any other security otherwise deliverable upon such exercise would
result in such holder having Beneficial Ownership in excess of the 4.999% Ownership Limitation. Any purported delivery to any holder shall be void and have no effect to the extent, but only to the extent, that after such delivery, such holder would
have Beneficial Ownership of our common stock or any such Class in excess of the 4.999% Ownership Limitation.
By written notice to us,
any holder of Series D Warrants, Series F Warrants or Series H Warrants may increase or decrease this beneficial ownership limitation to any other percentage not in excess of 9.99%; provided that any such increase will not be effective until the
61st day after such notice is delivered to us.
For purposes of calculating Beneficial Ownership for each of the immediately six preceding
paragraphs, the aggregate number of shares of our common stock beneficially owned by a holder will include the number of shares of our common stock issuable upon exercise of the Warrants with respect to which the determination of such sentence is
being made, but shall exclude the number of shares of our common stock which are issuable upon (i) exercise of the remaining, unexercised Warrants beneficially owned by such holder, and (ii) exercise or conversion of the unexercised or unconverted
portion of any of our other securities beneficially owned by such holder (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation
contained herein.
These ownership limitations will be construed, corrected and implemented in a manner so as to effectuate the intended
beneficial ownership limitations herein contained and the shares of our common stock underlying the Warrants in excess of the 19.999% Ownership Limitation, 9.999% Ownership Limitation or the 4.999% Ownership Limitation will not be deemed to be
beneficially owned by a holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act.
24
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this purpose as the holders of those securities. These persons
are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as indirect holders of those securities. As we discuss
below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue
securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositarys book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of
themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security.
Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all
payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so
under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositarys book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect
holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in
their own names or in street name. Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial
interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will
recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along
the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be
indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of
a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a
notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does
not do so. Similarly, we may want to obtain the approval of the legal holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In
such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the legal holders.
25
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check
with your own institution to find out:
|
|
|
how it handles securities payments and notices;
|
|
|
|
whether it imposes fees or charges;
|
|
|
|
how it would handle a request for the holders consent, if ever required;
|
|
|
|
whether and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted in the future;
|
|
|
|
how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
|
|
|
|
if the securities are in book-entry form, how the depositarys rules and procedures will affect these matters.
|
Global Securities
A global security is a
security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued
in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its
nominee or a successor depositary, unless special termination situations arise. We describe those situations below under Special Situations When a Global Security Will Be Terminated. As a result of these arrangements, the depositary, or
its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an
account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the
security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular
security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities
through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special
Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account
rules of the investors financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a legal holder of securities and instead deal only with the depositary that
holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
|
|
|
an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below;
|
|
|
|
an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above;
|
26
|
|
|
an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
|
|
|
|
an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order
for the pledge to be effective;
|
|
|
|
the depositarys policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investors interest in a global security;
|
|
|
|
we and any applicable trustee have no responsibility for any aspect of the depositarys actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the
depositary in any way;
|
|
|
|
the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may
require you to do so as well; and
|
|
|
|
financial institutions that participate in the depositarys book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and
other matters relating to the securities.
|
There may be more than one financial intermediary in the chain of ownership for
an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will
Be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged
for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have
their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations
occur:
|
|
|
if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
|
|
|
|
if we notify any applicable trustee that we wish to terminate that global security; or
|
|
|
|
if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
|
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series
of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN OF DISTRIBUTION
Unallocated Securities
We may sell the
unallocated securities covered by this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell such securities to or through underwriters or
dealers, through agents, or directly to one or more purchasers. We may distribute such securities from time to time in one or more transactions:
|
|
|
at a fixed price or prices, which may be changed;
|
|
|
|
at market prices prevailing at the time of sale;
|
27
|
|
|
at prices related to such prevailing market prices; or
|
A prospectus supplement or supplements will describe the terms of the
offering of the securities, including:
|
|
|
the name or names of the underwriters, if any;
|
|
|
|
the purchase price of the securities and the proceeds we will receive from the sale;
|
|
|
|
any over-allotment options under which underwriters may purchase additional securities from us;
|
|
|
|
any agency fees or underwriting discounts and other items constituting agents or underwriters compensation;
|
|
|
|
any public offering price;
|
|
|
|
any discounts or concessions allowed or reallowed or paid to dealers; and
|
|
|
|
any securities exchange or market on which the securities may be listed.
|
Only
underwriters named in the prospectus supplement applicable to such offering will be underwriters of the securities offered by such prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time
in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable
underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to
purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time
to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of
securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against
civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or
perform services for, us in the ordinary course of business.
All securities we may offer, other than common stock, will be new issues of
securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the
trading markets for any securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions
and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as
the stabilizing bids do not exceed a specified maximum price.
Syndicate-covering
or other
short-covering
transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities
28
originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would
otherwise be. If commenced, the underwriters may discontinue any such activities at any time.
Any underwriters that are qualified market
makers on the NASDAQ Capital Market may engage in passive market making transactions in the common stock on the NASDAQ Capital Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the
offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display
its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market makers bid, however, the passive market makers bid must then be lowered when certain purchase
limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received
by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
Warrant Shares
We will sell the Warrant
Shares covered by this prospectus from time to time only to the holders of the applicable Warrants upon exercise of such Warrants in accordance with the terms thereof.
LEGAL MATTERS
The validity of the securities being offered by this prospectus will be passed upon by Paul Hastings LLP, San Diego, California.
EXPERTS
The consolidated financial statements for the year ended December 31, 2015 incorporated by reference in this prospectus and elsewhere in
the registration statement have been so incorporated by reference in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements for the years ended December 31, 2014 and 2013 (before the retrospective adjustments to the
consolidated financial statements and financial statement disclosures relating to the reverse stock split) (not separately presented herein) incorporated in this prospectus by reference from the Companys Annual Report on Form 10-K have been
audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report (which report expresses an unqualified opinion and includes explanatory paragraphs referring to the Companys going concern
uncertainty and development activities and the reverse stock split), which is incorporated herein by reference. Those retrospective adjustments relating to the reverse stock split were audited by other auditors. Such 2013 and 2014 consolidated
financial statements have been so incorporated in reliance upon the report of Deloitte & Touche LLP given upon their authority as experts in accounting and auditing.
MATERIAL CHANGES
In the first quarter of 2016, the Company adopted ASU 2015-03,
InterestImputation of Interest (Subtopic 835-30).
This ASU
requires companies to present, in the balance sheet, debt issuance costs as a direct deduction from the carrying amount of their debt, consistent with debt discounts. The retrospective impact on the Companys balance sheets as of December
31, 2015 and 2014 is immaterial and resulted in a reduction in assets and debt of $0.3 million and $0.5 million, respectively.
29
WHERE YOU CAN FIND ADDITIONAL INFORMATION
Available Information
We file annual,
quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for more information about the operation of the public reference room. The SEC maintains an Internet website at
http://www.sec.gov
that contains reports, proxy and information statements, and
other information regarding issuers that file electronically with the SEC, including Gevo, Inc. You may also access our reports and proxy statements free of charge at our Internet website,
http://www.gevo.com
.
This prospectus is part of a registration statement that we have filed with the SEC relating to the securities to be offered. This prospectus
does not contain all of the information we have included in the registration statement and the accompanying exhibits and schedules in accordance with the rules and regulations of the SEC, and we refer you to the omitted information. The statements
this prospectus makes pertaining to the content of any contract, agreement or other document that is an exhibit to the registration statement necessarily are summaries of their material provisions and do not describe all exceptions and
qualifications contained in those contracts, agreements or documents. You should read those contracts, agreements or documents for information that may be important to you. The registration statement, exhibits and schedules are available at the
SECs Public Reference Room or through its Internet website.
Incorporation by Reference
The rules of the SEC allow us to incorporate by reference in this prospectus the information in other documents that we file with it, which
means that we can disclose important information to you by referring you to those documents that we have filed separately with the SEC. You should read the information incorporated by reference because it is an important part of this prospectus. We
hereby incorporate by reference the following information or documents into this prospectus:
|
|
|
our Annual Report on Form 10-K for the fiscal year ended December 31, 2015 filed with the SEC on March 30, 2016;
|
|
|
|
our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2016, filed with the SEC on May 12, 2016;
|
|
|
|
our Current Reports on Form 8-K filed with the SEC on January 22, 2016, January 26, 2016, February 5, 2016, March 29, 2016, April 5, 2016, June 13, 2016 and June 20, 2016; and
|
|
|
|
the description of our common stock contained in our Registration Statement on Form S-1 (File No. 333-168792), filed with the SEC on August 12, 2010, including any subsequent amendment or report filed for the
purpose of amending such description.
|
Any information in any of the foregoing documents will automatically be deemed to be
modified or superseded to the extent that information in this prospectus or in a later filed document that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.
We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until we file a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities then remaining unsold. Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings
will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document
modify or replace such earlier statements.
Upon written or oral request, we will provide to you, without charge, a copy of any or all of
the documents that are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits which are specifically incorporated by reference into such documents. Requests should be directed to: Gevo, Inc.,
Attention: Investor Relations, 345 Inverness Drive South, Building C, Suite 310, Englewood, Colorado, 80112, telephone (303) 858-8358.
30
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14.
|
Other Expenses of Issuance and Distribution.
|
The following table
sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration
fee.
|
|
|
|
|
SEC Registration Fee
|
|
$
|
7,755
|
|
Printing and Engraving Expenses
|
|
|
25,000
|
|
Legal Fees and Expenses
|
|
|
50,000
|
|
Accounting Fees and Expenses
|
|
|
50,000
|
|
Miscellaneous
|
|
|
25,000
|
|
|
|
|
|
|
Total
|
|
$
|
157,755
|
|
|
|
|
|
|
Item 15.
|
Indemnification of Directors and Officers.
|
Under Section 145
of the DGCL, a corporation has the power to indemnify its directors and officers under certain prescribed circumstances and, subject to certain limitations, against certain costs and expenses, including attorneys fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred in connection with any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, to which any of them is a party by reason of
his being a director or officer of the corporation if it is determined that he acted in accordance with the applicable standard of conduct set forth in such statutory provision. In addition, a corporation may advance expenses incurred by a director
or officer in defending a proceeding upon receipt of an undertaking from such person to repay any amount so advanced if it is ultimately determined that such person is not eligible for indemnification. Our amended and restated certificate of
incorporation provides that, pursuant to the DGCL, our directors shall not be liable for monetary damages to the fullest extent authorized under applicable law, including for breach of the directors fiduciary duty of care to us and our
stockholders. This provision in our amended and restated certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be subject to liability for breach of the directors duty of loyalty, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of
the law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a directors
responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.
Article 10 of our
amended and restated bylaws provides that we will indemnify, to the fullest extent authorized by the DGCL, each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of our company, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith.
In addition to the above, we have entered into indemnification agreements with each of our directors and officers. These indemnification
agreements provide our directors and officers with the same indemnification and advancement of expenses as described above, and provide that our directors and officers will be indemnified to the fullest extent authorized by any future Delaware law
that expands the permissible scope of indemnification. We also have directors and officers liability insurance, which provides coverage against certain liabilities that may be incurred by our directors and officers in their capacities as
directors and officers of the Company.
The underwriting agreement that we might enter into (to be filed as Exhibit 1.1) will provide
for indemnification by any underwriters of us, our directors, our officers who sign the registration statement and our controlling persons for certain liabilities, including certain liabilities arising under the Securities Act.
II-1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by
Reference
|
|
|
Exhibit
Number
|
|
Exhibit Description
|
|
Form
|
|
|
Filing Date/
Period End
Date
|
|
Exhibit
|
|
Filed-
Furnished
Herewith
|
|
|
|
|
|
|
1.1
|
|
Form of Underwriting Agreement.
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of Gevo, Inc.
|
|
|
10-K
|
|
|
March 29, 2011
|
|
3.1
|
|
|
|
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws of Gevo, Inc.
|
|
|
10-K
|
|
|
March 29, 2011
|
|
3.2
|
|
|
|
|
|
|
|
|
4.3
|
|
Form of Gevo, Inc. Common Stock Certificate.
|
|
|
S-1
|
|
|
January 19, 2011
|
|
4.1
|
|
|
|
|
|
|
|
|
4.4
|
|
Common Stock Unit Warrant Agreement
|
|
|
8-K
|
|
|
December 16, 2013
|
|
4.1
|
|
|
|
|
|
|
|
|
4.5
|
|
Common Stock Unit Warrant Agreement
|
|
|
8-K
|
|
|
August 5, 2014
|
|
4.1
|
|
|
|
|
|
|
|
|
4.6
|
|
2015 Common Stock Unit Series A Warrant Agreement
|
|
|
8-K
|
|
|
February 4, 2015
|
|
4.1
|
|
|
|
|
|
|
|
|
4.7
|
|
2015 Common Stock Unit Series C
|
|
|
8-K
|
|
|
May 20, 2015
|
|
4.1
|
|
|
|
|
|
|
|
|
4.8
|
|
Form of Series D Warrant
|
|
|
8-K
|
|
|
December 15, 2015
|
|
4.1
|
|
|
|
|
|
|
|
|
4.9
|
|
Form of Series F Warrant
|
|
|
8-K
|
|
|
April 5, 2016
|
|
4.1
|
|
|
|
|
|
|
|
|
4.10
|
|
Form of Series H Warrant
|
|
|
8-K
|
|
|
April 5, 2016
|
|
4.3
|
|
|
|
|
|
|
|
|
4.11
|
|
Form of Senior Debt Indenture
|
|
|
S-3
|
|
|
May 13, 2016
|
|
4.4
|
|
|
|
|
|
|
|
|
4.12
|
|
Form of Subordinated Debt Indenture
|
|
|
S-3
|
|
|
May 13, 2016
|
|
4.5
|
|
|
|
|
|
|
|
|
4.13
|
|
Form of Senior Note
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.14
|
|
Form of Subordinated Note
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.15
|
|
Form of Specimen Preferred Stock Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.16
|
|
Form of Certificate of Designation
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.17
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.18
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.19
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.20
|
|
Form of Unit Agreement
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.1
|
|
Opinion of Paul Hastings LLP
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges
|
|
|
S-3
|
|
|
May 13, 2016
|
|
12.1
|
|
|
|
|
|
|
|
|
23.1
|
|
Consent of Paul Hastings LLP (included in Exhibit 5.1)
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
23.2
|
|
Consent of Independent Registered Public Accounting Firm, Grant Thornton LLP
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
23.3
|
|
Consent of Independent Registered Public Accounting Firm, Deloitte & Touche LLP
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page of original filing)
|
|
|
S-3
|
|
|
May 13, 2016
|
|
|
|
|
|
|
|
|
|
|
25.1
|
|
Statement of Eligibility of Trustee under the Senior Debt Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.2
|
|
Statement of Eligibility of Trustee under the Subordinated Debt Indenture
|
|
|
|
|
|
|
|
|
|
|
#
|
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference, if applicable.
|
|
To be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.
|
II-2
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 the 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; and
(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 (1)(i), (1)(ii) and (1)(iii) above 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 and 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:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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 effective date, 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 effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to
II-3
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants 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
plans 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 the securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(7)
That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(8) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(9) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant 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 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 Securities Exchange Act and will be governed by the final adjudication
of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the
County of Douglas, State of Colorado, on July 1, 2016.
|
|
|
G
EVO
, I
NC
.
|
|
|
By:
|
|
/s/ Patrick R.
Gruber
|
|
|
Patrick R. Gruber
Chief Executive Officer
(Principal Executive Officer)
|
|
|
By:
|
|
/s/ Michael J.
Willis
|
|
|
Michael J. Willis
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
II-5
Pursuant to the requirements of the Securities Act of 1933, as amended, this Pre-Effective
Amendment No. 1 to the Registration Statement on Form S-3 has been signed below by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
NAME
|
|
TITLE
|
|
DATE
|
|
|
|
/s/ Patrick R.
Gruber
|
|
Chief Executive Officer (Principal Executive Officer) and Director
|
|
July 1, 2016
|
Patrick R. Gruber
|
|
|
|
|
|
/s/ Michael J.
Willis
|
|
Chief Financial Officer (Principal Financial and Accounting Officer)
|
|
July 1, 2016
|
Michael J. Willis
|
|
|
|
|
|
*
|
|
Chairperson of the Board of Directors
|
|
July 1, 2016
|
Ruth I. Dreessen
|
|
|
|
|
|
*
|
|
Director
|
|
July 1, 2016
|
Gary W. Mize
|
|
|
|
|
|
*
|
|
Director
|
|
July 1, 2016
|
Andrew J. Marsh
|
|
|
|
|
|
*
|
|
Director
|
|
July 1, 2016
|
Johannes Minho Roth
|
|
|
|
|
|
*
|
|
Director
|
|
July 1, 2016
|
William H. Baum
|
|
|
|
|
|
*By:
|
|
/s/ Patrick R.
Gruber
|
|
|
Patrick R. Gruber
|
|
|
Attorney in Fact
|
II-6
EXHIBIT INDEX
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by
Reference
|
|
|
Exhibit
Number
|
|
Exhibit Description
|
|
Form
|
|
|
Filing Date/
Period End
Date
|
|
Exhibit
|
|
Filed-
Furnished
Herewith
|
|
|
|
|
|
|
1.1
|
|
Form of Underwriting Agreement.
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of Gevo, Inc.
|
|
|
10-K
|
|
|
March 29, 2011
|
|
3.1
|
|
|
|
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws of Gevo, Inc.
|
|
|
10-K
|
|
|
March 29, 2011
|
|
3.2
|
|
|
|
|
|
|
|
|
4.3
|
|
Form of Gevo, Inc. Common Stock Certificate.
|
|
|
S-1
|
|
|
January 19, 2011
|
|
4.1
|
|
|
|
|
|
|
|
|
4.4
|
|
Common Stock Unit Warrant Agreement
|
|
|
8-K
|
|
|
December 16, 2013
|
|
4.1
|
|
|
|
|
|
|
|
|
4.5
|
|
Common Stock Unit Warrant Agreement
|
|
|
8-K
|
|
|
August 5, 2014
|
|
4.1
|
|
|
|
|
|
|
|
|
4.6
|
|
2015 Common Stock Unit Series A Warrant Agreement
|
|
|
8-K
|
|
|
February 4, 2015
|
|
4.1
|
|
|
|
|
|
|
|
|
4.7
|
|
2015 Common Stock Unit Series C
|
|
|
8-K
|
|
|
May 20, 2015
|
|
4.1
|
|
|
|
|
|
|
|
|
4.8
|
|
Form of Series D Warrant
|
|
|
8-K
|
|
|
December 15, 2015
|
|
4.1
|
|
|
|
|
|
|
|
|
4.9
|
|
Form of Series F Warrant
|
|
|
8-K
|
|
|
April 5, 2016
|
|
4.1
|
|
|
|
|
|
|
|
|
4.10
|
|
Form of Series H Warrant
|
|
|
8-K
|
|
|
April 5, 2016
|
|
4.3
|
|
|
|
|
|
|
|
|
4.11
|
|
Form of Senior Debt Indenture
|
|
|
S-3
|
|
|
May 13, 2016
|
|
4.4
|
|
|
|
|
|
|
|
|
4.12
|
|
Form of Subordinated Debt Indenture
|
|
|
S-3
|
|
|
May 13, 2016
|
|
4.5
|
|
|
|
|
|
|
|
|
4.13
|
|
Form of Senior Note
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.14
|
|
Form of Subordinated Note
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.15
|
|
Form of Specimen Preferred Stock Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.16
|
|
Form of Certificate of Designation
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.17
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.18
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.19
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.20
|
|
Form of Unit Agreement
#
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.1
|
|
Opinion of Paul Hastings LLP
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges
|
|
|
S-3
|
|
|
May 13, 2016
|
|
12.1
|
|
|
|
|
|
|
|
|
23.1
|
|
Consent of Paul Hastings LLP (included in Exhibit 5.1)
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
23.2
|
|
Consent of Independent Registered Public Accounting Firm, Grant Thornton LLP
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
23.3
|
|
Consent of Independent Registered Public Accounting Firm, Deloitte & Touche LLP
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page of original filing)
|
|
|
S-3
|
|
|
May 13, 2016
|
|
|
|
|
|
|
|
|
|
|
25.1
|
|
Statement of Eligibility of Trustee under the Senior Debt Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.2
|
|
Statement of Eligibility of Trustee under the Subordinated Debt Indenture
|
|
|
|
|
|
|
|
|
|
|
#
|
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference, if applicable.
|
|
To be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.
|
Gevo (NASDAQ:GEVO)
Historical Stock Chart
From Sep 2024 to Oct 2024
Gevo (NASDAQ:GEVO)
Historical Stock Chart
From Oct 2023 to Oct 2024