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Contents
As filed with the Securities and Exchange Commission on May 7,
2010
Registration Statement No. 333-165478
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SATCON
TECHNOLOGY CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
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04-2857552
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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27 Drydock Avenue
Boston, Massachusetts 02210
(617) 897-2400
(Address,
including zip code, and telephone number, including
area
code, of registrants principal executive offices)
Charles S. Rhoades
Chief Executive Officer
Satcon Technology Corporation
27 Drydock Avenue
Boston, Massachusetts 02210
(617) 897-2400
(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
Copies to:
Bradley A. Jacobson, Esq.
Greenberg Traurig LLP
One International Place
Boston, Massachusetts 02110
Telephone: (617) 310-6205
Telecopy: (617) 310-6001
Approximate
date of commencement of proposed sale to public:
From
time to time after this Registration Statement becomes effective.
If the only securities being
registered on this Form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box.
o
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.
o
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.
o
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.
o
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.
o
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 definition of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2
of the Exchange Act.
Large
accelerated filer
o
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Accelerated filer
x
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Non-accelerated
filer
o
|
(Do not check if a smaller
reporting company)
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Smaller reporting company
o
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), shall determine.
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Contents
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 it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to completion, dated May
7
, 2010
PROSPECTUS
Satcon Technology Corporation
$50,000,000
Common Stock
Preferred Stock
Warrants
Purchase Contracts
Depositary Shares
Debt Securities
Units
This prospectus relates to
common stock, preferred stock, warrants, purchase contracts, depositary shares,
debt securities and units that we may sell from time to time in one or more
offerings up to a total dollar amount of $50,000,000 on terms to be determined
at the time of sale. We will provide
specific terms of these securities in supplements to this prospectus. You
should read this prospectus and any supplement carefully before you invest.
This prospectus may not be used to offer and sell securities unless accompanied
by a prospectus supplement for those securities.
Our common stock is traded
on the Nasdaq Capital Market under the symbol SATC.
These securities may be sold
directly by us, through dealers or agents designated from time to time, to or
through underwriters or through a combination of these methods. See Plan of
Distribution in this prospectus. We may also describe the plan of distribution
for any particular offering of these securities in any applicable prospectus
supplement. If any agents, underwriters or dealers are involved in the sale of
any securities in respect of which this prospectus is being delivered, we will
disclose their names and the nature of our arrangements with them in a
prospectus supplement. The net proceeds we expect to receive from any such sale
will also be included in a prospectus supplement.
Investing
in our securities involves a high degree of risk. See Risk Factors beginning
on page 1.
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
,
2010
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Contents
TABLE OF CONTENTS
Important Notice about the Information Presented in this
Prospectus
You should rely only on the
information contained or incorporated by reference in this prospectus or any
applicable prospectus supplement. We have not authorized any other person to
provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. For further
information, see the section of this prospectus entitled Where You Can Find
More Information. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted.
You should not assume that
the information appearing in this prospectus or any applicable prospectus supplement
is accurate as of any date other than the date on the front cover of this
prospectus or the applicable prospectus supplement, or that the information
contained in any document incorporated by reference is accurate as of any date
other than the date of the document incorporated by reference, regardless of
the time of delivery of this prospectus or any prospectus supplement or any
sale of a security. Our business, financial condition, results of operations
and prospects may have changed since such dates.
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ABOUT THIS PROSPECTUS
This prospectus is part of a
registration statement that we filed with the Securities and Exchange
Commission, or the SEC, using a shelf registration process. Under this shelf registration process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $50,000,000. This prospectus provides you with a general
description of the securities we may offer.
Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the securities being offered and
the terms of that offering. The
prospectus supplement may also add to, update or change information contained
in this prospectus. You should read both this prospectus and any prospectus
supplement together with the additional information described under the heading
Where You Can Find More Information carefully before making an investment
decision.
Unless the context otherwise
requires, the terms Satcon, the Company, our company, we, us, our
and similar names refer collectively to Satcon Technology Corporation and its
subsidiaries.
ABOUT SATCON TECHNOLOGY CORPORATION
We
are a world leading technology provider of utility grade power conversion
solutions for the renewable energy market.
Our products feature the widest range of power ratings in the industry,
and are utilized by businesses and utility companies to efficiently convert
renewable energy sources into stable and reliable electrical power.
Our
suite of photovoltaic and fuel cell power inverters offer rugged and reliable
solutions that enhance the total output and power production of a solar
installation. We also offer system
design services and solutions for management, monitoring, and performance
measurement to maximize capital investment and improve overall quality and
performance over the entire lifespan of an installation.
We were incorporated in
Delaware in May 1992 under the name of Satcon Technology Corporation. Our
principal executive offices are located at 27 Drydock Avenue, Boston,
Massachusetts 02210, and our telephone number is (617) 897-2400. Our worldwide
web address is www.Satcon.com. The information on our web site is not
incorporated by reference into this prospectus and should not be considered to
be part of this prospectus.
RISK FACTORS
Investing
in our securities involves significant risks.
Please see the risk factors under the heading Risk Factors in our most
recent Annual Report on Form 10-K, as revised or supplemented by our
Quarterly Reports on Form 10-Q filed with the SEC since the filing of our
most recent Annual Report on Form 10-K, each of which are on file with the
SEC and are incorporated by reference in this prospectus. Before making an investment decision, you
should carefully consider these risks as well as other information we include
or incorporate by reference in this prospectus and any prospectus
supplement. The risks and uncertainties
we have described are not the only ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also affect our
business operations.
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Table of Contents
SPECIAL NOTE REGARDING
FORWARD-LOOKING INFORMATION
This prospectus includes and
incorporates 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). All
statements, other than statements of historical facts, included or incorporated
in this prospectus regarding our strategy, future operations, financial
position, future revenues, projected costs, prospects, plans and objectives of
management are forward-looking statements. The words anticipates, believes,
estimates, expects, intends, may, plans, projects, will, would
and similar expressions are intended to identify forward-looking statements,
although not all forward-looking statements contain these identifying words. We
cannot guarantee that we actually will achieve the plans, intentions or
expectations disclosed in our forward-looking statements and you should not
place undue reliance on our forward-looking statements. There are a number of
important factors that could cause our actual results to differ materially from
those indicated by these forward-looking statements. These important factors
include the factors that we identify in the documents we incorporate by
reference in this prospectus, as well as other information we include or
incorporate by reference in this prospectus and any prospectus supplement. See Risk
Factors. You should read these factors
and other cautionary statements made in this prospectus and any accompanying
prospectus supplement, and in the documents we incorporate by reference as
being applicable to all related forward-looking statements wherever they appear
in the prospectus and any accompanying prospectus supplement, and in the
documents incorporated by reference. We do not assume any obligation to update
any forward-looking statements made by us.
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RATIOS OF EARNINGS TO FIXED
CHARGES
We
have not recorded earnings for any of our last five fiscal years and,
accordingly, are unable to cover fixed charges from our earnings. Loss consists
of loss before provision for income taxes and cumulative effects of accounting
changes plus fixed charges. Fixed charges consist of interest expense and a
portion of rental expense that we believe to be representative of interest. The
ratio of earnings to fixed charges was computed by dividing earnings by fixed
charges. The following table discloses our dollar coverage deficiency.
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Fiscal Year Ended December 31,
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Three Months
Ended
December 31,
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Fiscal Year
Ended
September 30,
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2009
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2008
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2007
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2006
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2005
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2005
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Earnings (in thousands)
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$
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(23,548
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)
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$
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(14,337
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)
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$
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(8,117
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)
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$
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(13,344
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)
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$
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(1,172
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)
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$
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(9,142
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)
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Fixed Charges (in thousands)
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$
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$
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$
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3,344
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$
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1,168
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$
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45
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$
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429
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Ratio of Earnings to Fixed Charges
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(2.43
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)
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(11.42
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)
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(26.17
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)
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(21.30
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)
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Coverage deficiency to attain a ratio of 1:1 (in thousands)
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$
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23,548
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$
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14,337
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$
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11,461
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$
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14,512
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$
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1,217
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$
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9,571
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RATIOS OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED DIVIDENDS
We
have not recorded earnings for any of our last five fiscal years and,
accordingly, are unable to cover combined fixed charges and preferred dividends
from our earnings. Loss consists of loss before provision for income taxes and
cumulative effects of accounting changes plus fixed charges. Fixed charges
consist of interest expense and a portion of rental expense that we believe to
be representative of interest. The ratio of earnings to combined fixed charges
and preferred dividends was computed by dividing earnings by combined fixed
charges and preferred dividends. The following table discloses our dollar
coverage deficiency.
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Fiscal Year Ended December 31,
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Three Months Ended December 31,
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Fiscal Year
Ended
September 30,
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2009
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2008
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2007
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2006
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2005
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2005
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Earnings (in thousands)
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$
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(23,548
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)
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$
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(14,337
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)
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$
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(8,117
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)
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$
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(13,344
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)
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$
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(1,172
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)
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$
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(9,142
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)
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|
|
|
|
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|
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Combined Fixed Charges and Preferred Dividends (in thousands)
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$
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70
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$
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130
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$
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3,482
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$
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1,315
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$
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87
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$
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557
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Ratio of Earnings to Combined Fixed Charges and Preferred Dividends
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(336.22
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)
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(110.00
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)
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(2.33
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)
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(10.15
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)
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(13.43
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)
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(16.42
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)
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|
|
|
|
|
|
|
|
|
|
|
|
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Coverage deficiency to attain a ratio of 1:1 (in thousands)
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$
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23,618
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$
|
14,467
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$
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11,599
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$
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14,658
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$
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1,260
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$
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9,699
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USE OF PROCEEDS
We currently intend to use
the estimated net proceeds from the sale of these securities for working
capital and other general corporate purposes, and possibly acquisitions of
other businesses, products or technologies.
Working capital and other general corporate purposes may include
research and development expenditures, capital expenditures and any other
purpose that we may specify in any prospectus supplement. We have not yet determined the amount of net
proceeds to be used specifically for any of the foregoing purposes. Accordingly, our management will have
significant discretion and flexibility in applying the net proceeds from the
sale of these securities. Pending any
use, as described above, we intend to invest the net proceeds in high-quality,
short-term, interest-bearing securities.
Our plans to use the estimated net proceeds from the sale of these
securities may change, and if they do, we will update this information in a
prospectus supplement.
THE SECURITIES WE MAY OFFER
The descriptions of the securities
contained in this prospectus, together with the applicable prospectus
supplements, summarize the material terms and provisions of the various types
of securities that we may offer. We will
describe in the applicable prospectus supplement relating to any securities the
particular terms of the securities offered by that prospectus supplement. If we so indicate in the applicable
prospectus supplement, the terms of the securities may differ from the terms we
have summarized below. We will also include
in the prospectus supplement information, where applicable, about material
United States federal income tax considerations relating to the securities, and
the securities exchange, if any, on which the securities will be listed.
We may sell from time to
time, in one or more offerings:
·
common stock;
·
preferred stock;
·
depositary shares;
·
debt securities;
·
warrants to purchase common stock,
preferred stock, depositary shares, debt securities or units;
·
purchase contracts; or
·
units comprised
of common stock, preferred stock, depositary shares, warrants, purchase
contracts and debt securities in any combination.
In this prospectus, we refer
to the common stock, preferred stock, depositary shares, debt securities,
warrants, purchase contracts and units collectively as securities. The total dollar amount of all securities
that we may issue will not exceed $50,000,000.
If we issue debt securities
at a discount from their original stated principal amount, then, for purposes
of calculating the total dollar amount of all securities issued under this
prospectus, we will treat the initial offering price of the debt securities as
the total original principal amount of the debt securities.
This prospectus may not be
used to consummate a sale of securities unless it is accompanied by a
prospectus supplement.
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DESCRIPTION OF COMMON STOCK
The
following is a description of the material terms and provisions of our common
stock. It may not contain all the information that is important to you. You can
access complete information by referring to our certificate of incorporation
and bylaws.
General
Under
our certificate of incorporation, we have authority to issue 200,000,000 shares
of common stock, par value $0.01 per share.
As of March 1, 2010, there were 71,001,440 shares of common stock
issued and outstanding. All shares of
common stock will, when issued, be duly authorized, fully paid and nonassessable. Accordingly, the full price for the
outstanding shares of common stock will have been paid at issuance and any
holder of our common stock will not be later required to pay us any additional
money for such common stock.
In
addition, as of March 1, 2010:
·
there were
outstanding warrants to purchase an aggregate of up to 24,714,055 shares of our
common stock at a weighted average exercise price of $1.37 per share;
·
there were an
aggregate of 10,895,434 shares of our common stock subject to outstanding stock
options at a weighted average exercise price of $2.17 per share;
·
9,015,820
shares of our common stock were reserved for future issuances under our stock
option plans;
·
251,678 shares
of our common stock were reserved for issuance upon conversion of our
outstanding Series B Preferred Stock, which is described below under Description
of Preferred StockGeneral; and
·
26,538,462
shares of our common stock were reserved for issuance upon conversion of our
outstanding Series C Preferred Stock, which is described below under Description
of Preferred StockGeneral.
Dividends
Subject
to the prior rights of any series of preferred stock which may from time to
time be outstanding, the holders of our common stock are entitled to receive
such dividends, if any, as may be declared from time to time by our board of
directors out of legally available funds.
In the event we are liquidated, dissolved or our affairs are wound up,
after we pay or make adequate provision for all of our known debts and
liabilities, each holder of common stock will receive dividends pro rata out of
assets that we can legally use to pay distributions, subject to any rights that
are granted to the holders of any class or series of preferred stock.
Voting Rights
Holders
of common stock will have the exclusive power to vote on all matters presented
to our stockholders, including the election of directors, except as otherwise
provided by Delaware law or as provided with respect to any other class or
series of stock, such as our Series C Preferred Stock, as discussed in
more detail below. Holders of common
stock are entitled to one vote per share.
There is no cumulative voting in the election of our directors, which
means that, subject to any rights to elect directors that are granted to the
holders of any class or series of preferred stock, a plurality of the votes
cast at a meeting of stockholders at which a quorum is present is sufficient to
elect a director.
Other Rights
Subject
to the preferential rights of any other class or series of stock, all shares of
common stock have equal dividend, distribution, liquidation and other rights,
and have no preference, appraisal or exchange rights, except for any appraisal
rights provided by Delaware law.
Furthermore, holders of common stock have no conversion, sinking fund or
redemption rights, or preemptive rights to subscribe for any of our securities.
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Transfer Agent
The
transfer agent and registrar for our common stock is American Stock Transfer
and Trust Company. Its address is 59
Maiden Lane, Plaza Level, New York, NY 10038.
Listing
Our
common stock is listed on the Nasdaq Capital Market under the symbol SATC.
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Table of Contents
DESCRIPTION OF PREFERRED STOCK
The
following is a description of the material terms and provisions of our
preferred stock. It may not contain all the information that is important to
you. You can access complete information by referring to our certificate of
incorporation and bylaws and to any applicable amendment to the certificate of
incorporation designating terms of a series of preferred stock, including,
without limitation, certificates of designation.
General
Under
our certificate of incorporation, we have authority to issue 1,000,000 shares
of preferred stock, par value $.01 per share.
As
of March 1, 2010, 75 shares of our Series B Preferred Stock were
outstanding. The shares of Series B Preferred Stock bear a cumulative
dividend at a rate of 8% per annum of the $5,000 per share liquidation
preference. Dividends are payable semi-annually and, except in certain limited
circumstances, may be paid by us, at our option, either through the issuance of
shares of common stock or in cash. In the event of a liquidation of our
company, the holders of shares of the Series B Preferred Stock are entitled
to receive a liquidation payment prior to the payment of any amount with
respect to the shares of our common stock. The amount of this preferential
liquidation payment is $5,000 per share of Series B Preferred Stock, plus
the amount of any accrued but unpaid dividends on those shares. Each
outstanding share of Series B Preferred Stock is convertible into a number
of shares of common stock equal to $5,000 divided by the conversion price of
the Series B Preferred Stock, which is currently $1.49, but may be
adjusted if certain events occur, including the issuance of shares of common
stock at a price less than the conversion price. The holders of Series B
Preferred Stock are entitled to redeem their shares of Series B Preferred
Stock immediately prior to the consolidation, merger or business combination of
Satcon with another entity, the sale or transfer of more than 50% of Satcons
assets or the closing of a purchase, tender or exchange offer made to the
holders of more than 50% of the outstanding common stock. In such an event, the
redemption price per share will equal $6,250 plus any accrued but unpaid
dividends and liquidated damages. We may pay the redemption price in either
cash or shares of common stock.
As
of March 1, 2010, 25,000 shares of our Series C Preferred Stock were
outstanding. Set forth below are the
material terms of the Series C Preferred Stock:
·
Seniority
. The Series C Preferred Stock ranks
senior to the common stock and senior to all other existing or future classes
or series of preferred stock or other equity securities, other than the
outstanding Series B Preferred Stock, with which it ranks pari passu.
·
Dividends
. Holders of the Series C Preferred Stock
have the right to receive, in preference to all other classes of stock junior
in rank to the Series C Preferred Stock, cumulative dividends at a rate of
5% of the stated liquidation preference amount, as defined below. After the payment of this dividend, holders
of the Series C Preferred Stock are entitled to participate on an as
converted basis in the payment of any dividends on the common stock.
·
Liquidation
Preference
. Upon a
liquidation, dissolution, winding-up, consolidation, merger, sale of
substantially all assets or similar event, holders of the Series C
Preferred Stock have the right to receive, in preference to all other classes
of our stock junior in rank to the Series C Preferred Stock, an amount per
share equal to the greater of (i) $1,000 per share plus all accrued but
unpaid dividends (the stated liquidation preference amount), or (ii) the
amount per share that a holder would have received if, immediately prior to the
liquidation, that holders share had been converted to common stock. After payment of the liquidation preference
described above, holders of the Series C Preferred Stock are not entitled
to any further participation in any distribution of our assets.
·
Conversion
. Each share of Series C Preferred Stock
is convertible into that number of shares of common stock equal to the quotient
determined by dividing 1,000 (plus accrued dividends) by the conversion
price. The initial conversion price of
the Series C Preferred Stock is $1.04 per share. The conversion price is subject to adjustment
under certain conditions and upon the occurrence of certain events, as
described below. The holder of a share
of Series C Preferred Stock may elect to convert that holders share at
any time. In addition,
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after November 8, 2009, we have the right to force conversion of
all Series C Preferred Stock if, for a 180 consecutive day period, the
average closing price of our common stock is equal to at least $7.00, subject
to adjustment for stock dividends, stock splits or other similar
recapitalizations. The Series C
Preferred Stock will receive weighted average anti-dilution protection in the
event of a dilutive issuance in accordance with a formula set forth in the
certificate of designation.
·
Voting
. The holders of Series C Preferred Stock
are entitled to vote on all matters on which the holders of common stock are
entitled to vote, voting together with the holders of common stock as a single
class. Each share of Series C
Preferred Stock is entitled to that number of votes as is equal to the quotient
determined by dividing (i) the original issue price of $1,000 by (ii) $1.44. Accordingly, each share of Series C
Preferred Stock is entitled to 694 votes.
The number of votes to which a share of Series C Preferred Stock is
entitled is subject to adjustment for any stock dividends, combinations, splits
and the like with respect to shares of common stock. We are not permitted, without the affirmative
vote or written consent of the holders of at least 67% of the outstanding Series C
Preferred Stock (50% of the outstanding Series C Preferred Stock with
respect to items (4), (5) and (8) below), directly or indirectly, to
take any of the following actions or agree to take any of the following
actions:
(1)
authorize, create or issue
any shares of preferred stock or other equity securities ranking senior to or
on a parity with the Series C Preferred Stock;
(2)
increase or decrease the
total number of authorized shares of Series C Preferred Stock;
(3)
amend or modify our
certificate of incorporation (including the certificate of designation governing
the Series C Preferred Stock) or bylaws that would adversely affect the
rights, preferences, powers and privileges of the Series C Preferred
Stock;
(4)
repurchase or redeem any
shares of Series B Preferred Stock (except pursuant to the existing terms of
the Series B Preferred Stock) or any equity securities ranking junior to
the Series C Preferred Stock, subject to certain exceptions;
(5)
effect any distribution or
declare, pay or set aside any dividend with respect to any equity securities
ranking junior to the Series C Preferred Stock;
(6)
incur any form of
indebtedness for borrowed money in excess of $5,000,000 in the aggregate (other
than indebtedness existing at November 8, 2007);
(7)
effect a liquidation,
consummate a reorganization event or dispose, transfer or license any material
assets, technology or intellectual property, other than non-exclusive licenses
in connection with sales of our products in the ordinary course of business;
(8)
consummate any transaction
that results in the transfer or issuance of securities, or options, warrants or
other rights to receive securities of a subsidiary or any other transaction
following which a subsidiary no longer remains wholly-owned by us or pursuant
to which any third party has a right to purchase securities of a subsidiary;
(9)
change the size of our board
of directors;
(10)
encumber or grant a security
interest in all or substantially all or a material part of our assets except to
secure indebtedness permitted above that is approved by our board of directors;
(11)
acquire a material amount of
assets of another entity, through a merger, purchase of assets or purchase of
capital stock or otherwise; or
(12)
enter into any agreement to
do or cause to be done any of the foregoing.
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·
Redemption
. On or after November 8, 2011, the
holders of two-thirds of the outstanding shares of Series C Preferred
Stock may require us to redeem all or any portion of the outstanding shares of Series C
Preferred Stock. The redemption price is
equal to 120% of the liquidation preference amount, to the extent that the
redemption is made in cash, or 140% of the liquidation preference amount to the
extent that, at our election, the redemption is made in shares of common
stock. If the redemption is made in
shares of common stock, the shares will be based on the fair market value of
the common stock, based on a 10 day volume weighted average, as of the
redemption date.
We
did not have any other shares of preferred stock outstanding as of the date of
this prospectus. Shares of preferred
stock may be issued from time to time, in one or more series, as authorized by
our board of directors. Prior to the
issuance of shares of each series, the board of directors is required by the
Delaware General Corporation Law and our certificate of incorporation to fix,
for each series, the designations, powers and preferences and the relative,
participating, optional or other special rights of the shares of each series
and any qualifications, limitations and restrictions thereof, as are permitted
by Delaware law. Our board of directors
could authorize the issuance of shares of preferred stock with terms and
conditions that could have the effect of discouraging a takeover or other transactions
that holders of common stock might believe to be in their best interests or in
which holders of some, or a majority, of the shares of common stock might
receive a premium for their shares over the then market price of such shares of
common stock. When issued, the preferred
stock will be fully paid and nonassessable and will have no preemptive rights.
Terms
If
we decide to issue any preferred stock pursuant to this prospectus, we will
describe in a prospectus supplement the terms of the preferred stock,
including, if applicable, the following:
·
the title of
the series and stated value;
·
the number of
shares of the series of preferred stock offered, the liquidation preference per
share, if applicable, and the offering price;
·
the applicable
dividend rate(s) or amount(s), period(s) and payment date(s) or
method(s) of calculation thereof;
·
the date from
which dividends on the preferred stock will accumulate, if applicable;
·
any procedures
for auction and remarketing;
·
any provisions
for a sinking fund;
·
any applicable
provision for redemption and the price or prices, terms and conditions on which
preferred stock may be redeemed;
·
any securities
exchange listing;
·
any voting
rights and powers;
·
whether
interests in the preferred stock will be represented by depository shares;
·
the terms and
conditions, if applicable, of conversion into shares of our common stock,
including the conversion price or rate or manner of calculation thereof;
·
a discussion of
any material U.S. federal income tax considerations;
·
the relative ranking
and preference as to dividend rights and rights upon our liquidation,
dissolution or the winding up of our affairs;
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·
any limitations
on issuance of any series of preferred stock ranking senior to or on a parity
with such series of preferred stock as to dividend rights and rights upon our
liquidation, dissolution or the winding up of our affairs; and
·
any other
specific terms, preferences, rights, limitations or restrictions of such series
of preferred stock.
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DESCRIPTION OF DEPOSITARY SHARES
We
may issue receipts for depositary shares representing fractional shares of
preferred stock. The fractional share of
the applicable series of preferred stock represented by each depositary share
will be set forth in the applicable prospectus supplement.
The
shares of any series of preferred stock underlying any depositary shares that
we may sell under this prospectus will be deposited under a deposit agreement
between us and a depositary selected by us.
Subject to the terms of the deposit agreement, each holder of a
depositary share will be entitled, in proportion to the applicable fraction of
a share of the preferred stock underlying the depositary share, to all of the
rights, preferences, and privileges, and will be subject to the qualifications
and restrictions, of the preferred stock underlying that depositary share.
The
depositary shares will be evidenced by depositary receipts issued under the
deposit agreement. Depositary receipts
will be distributed to the holders of the depositary shares that are sold in
the applicable offering. We will incorporate
by reference into the registration statement of which this prospectus is a part
the form of any deposit agreement, including a form of depositary receipt, that
describes the terms of any depositary shares we are offering before the
issuance of the related depositary shares.
The following summaries of material provisions of the deposit agreement,
the depositary shares, and the depositary receipts are subject to, and
qualified in their entirety by reference to, all of the provisions of the
deposit agreement applicable to a particular offering of depositary shares. We urge you to read the prospectus
supplements relating to any depositary shares that are sold under this
prospectus, as well as the complete deposit agreement and depositary receipt.
Form
Pending
the preparation of definitive depositary receipts, the depositary may, upon our
written order, issue temporary depositary receipts substantially identical to
the definitive depositary receipts but not in definitive form. These temporary depositary receipts will
entitle their holders to all of the rights of definitive depositary
receipts. Temporary depositary receipts
will then be exchangeable for definitive depositary receipts at our expense.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions
received with respect to the underlying preferred stock to the record holders
of depositary shares in proportion to the number of depositary shares owned by
those holders.
If
there is a distribution other than in cash, the depositary will distribute
property received by it to the record holders of depositary shares in
proportion to the number of depositary shares owned by those holders, unless
the depositary determines that it is not feasible to do so. If this occurs, the depositary may, with our
approval, sell the property and distribute the net proceeds from the sale to
those holders in proportion to the number of depositary shares owned by them.
The
amount distributed to holders of depositary shares will be reduced by any
amounts required to be withheld by us or the preferred stock depositary on
account of taxes or other governmental charges.
Liquidation
Preference
If
a series of preferred stock underlying the depositary shares has a liquidation
preference, in the event of our voluntary or involuntary liquidation, dissolution,
or winding up, holders of depositary shares will be entitled to receive the
fraction of the liquidation preference accorded each share of the applicable
series of preferred stock, as set forth in the applicable prospectus
supplement.
Withdrawal of
Underlying Preferred Stock
Except
as otherwise provided in a prospectus supplement, holders may surrender
depositary receipts at the principal office of the depositary and, upon payment
of any unpaid amount due to the depositary, be entitled to receive the
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number of whole shares of
underlying preferred stock and all money and other property represented by the
related depositary shares. We will not
issue any partial shares of preferred stock.
If the holder delivers depositary receipts evidencing a number of
depositary shares that represent more than a whole number of shares of
preferred stock, the depositary will issue a new depositary receipt evidencing
the excess number of depositary shares to the holder.
Redemption
of Depositary Shares
If
the preferred stock underlying any depositary shares we may sell under this
prospectus is subject to redemption, the depositary shares will be redeemed
from the proceeds received by the depositary resulting from any such
redemption, in whole or in part, of that underlying preferred stock. The
redemption price per depositary share will be equal to the applicable fraction
of the redemption price per share payable with respect to the underlying
preferred stock. Whenever we redeem shares of underlying preferred stock that
are held by the depositary, the depositary will redeem, as of the same
redemption date, the number of depositary shares representing the shares of
underlying preferred stock so redeemed. If fewer than all of the depositary
shares are to be redeemed, the depositary shares to be redeemed will be
selected by lot or proportionately, as may be determined by the depositary.
After
the date fixed for redemption, the depositary shares called for redemption will
no longer be deemed to be outstanding, and all rights of the holders of the
depositary shares will cease, except the right to receive the monies payable
and any other property to which the holders were entitled upon the redemption
upon surrender to the preferred stock depositary of the depositary receipts
evidencing the depositary shares. Any
funds deposited by us with the preferred stock depositary for any depositary
shares that the holders fail to redeem will be returned to us after a period of
two years from the date the funds are deposited.
Voting
Upon
receipt of notice of any meeting at which holders of the preferred stock
underlying any depositary shares that we may sell under this prospectus are
entitled to vote, the depositary will mail the information contained in the
notice to the record holders of the depositary shares. Each record holder of the depositary shares
on the record date, which will be the same date as the record date for the
underlying preferred stock, will be entitled to instruct the depositary as to
the exercise of the voting rights pertaining to the amount of the underlying
preferred stock represented by the holders depositary shares. The depositary will then try, as far as
practicable, to vote the number of shares of preferred stock underlying those
depositary shares in accordance with those instructions, and we will agree to
take all reasonable actions which may be deemed necessary by the depositary to
enable the depositary to do so. The
depositary will not vote the underlying preferred stock to the extent it does
not receive specific instructions with respect to the depositary shares representing
such preferred stock.
Conversion
of Preferred Stock
If
the prospectus supplement relating to any depositary shares that we may sell
under this prospectus states that the underlying preferred stock is convertible
into our common stock or other securities, the following will apply. The depositary shares, as such, will not be
convertible into any of our securities.
Rather, any holder of the depositary shares may surrender the related
depositary receipts to the depositary with written instructions that direct us
to cause conversion of the preferred stock represented by the depositary shares
into or for whole shares of our common stock or other securities, as
applicable. Upon receipt of those
instructions and any amounts payable by the holder in connection with the
conversion, we will cause the conversion using the same procedures as those
provided for conversion of the underlying preferred stock. If only some of a holders depositary shares
are converted, a new depositary receipt or receipts will be issued to the
holder for any depositary shares not converted.
Amendment
and Termination of the Deposit Agreement
The
form of depositary receipt evidencing the depositary shares and any provision
of the deposit agreement may at any time be amended by agreement between us and
the depositary. However, any amendment which materially and adversely alters
the rights of the holders of depositary shares will not be effective until 90
days after notice of that amendment has been given to the holders. Each holder
of depositary shares at the time any amendment becomes effective shall be
deemed to consent and agree to that amendment and to be bound by the deposit
agreement as so amended. The
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deposit agreement may be
terminated by us or by the depositary only if all outstanding depositary shares
have been redeemed or converted into any other securities into which the
underlying preferred stock is convertible or there has been a final
distribution, including to holders of depositary receipts, of the underlying
preferred stock in connection with our liquidation, dissolution, or winding up.
Charges of
Depositary
We
will pay all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangement. We will also pay charges of the depositary in
connection with the initial deposit of the preferred stock, the initial
issuance of the depositary shares, any redemption of the preferred stock, and
all withdrawals of preferred stock by owners of depositary shares. Holders of depositary receipts will pay
transfer, income, and other taxes and governmental charges and other specified
charges as provided in the deposit arrangement for their accounts. If these charges have not been paid, the
depositary may refuse to transfer depositary shares, withhold dividends and
distributions, and sell the depositary shares evidenced by the depositary
receipt.
Limitation
on Liability
Neither
we nor the depositary will be liable if either of us is prevented or delayed by
law or any circumstance beyond our control in performing our respective
obligations under the deposit agreement.
Our obligations and those of the depositary will be limited to performance
of our respective duties under the deposit agreement without, in our case,
negligence or bad faith or, in the case of the depositary, negligence or
willful misconduct. We and the
depositary may rely upon advice of counsel or accountants, or upon information
provided by persons presenting the underlying preferred stock for deposit,
holders of depositary receipts, or other persons believed by us in good faith
to be competent and on documents believed to be genuine.
Corporate
Trust Office of Preferred Stock Depositary
The
preferred stock depositarys corporate trust office will be set forth in the
applicable prospectus supplement relating to a series of depositary
shares. The preferred stock depositary
will act as transfer agent and registrar for depositary receipts, and, if
shares of a series of preferred stock are redeemable, the preferred stock
depositary will act as redemption agent for the corresponding depositary
receipts.
Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering notice to us of its election to
resign. We may remove the depositary at
any time. Any resignation or removal
will take effect upon the appointment of a successor depositary and its
acceptance of the appointment. The
successor depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
Reports to
Holders
We
will deliver all required reports and communications to holders of the
preferred stock to the preferred stock depositary, and it will forward those
reports and communications to the holders of depositary shares. Upon request,
the preferred stock depositary will provide for inspection to the holders of
depositary shares the transfer books of the depositary and the list of holders
of receipts; provided that any requesting holder certifies to the preferred
stock depositary that such inspection is for a proper purpose reasonably
related to such persons interest as an owner of depositary shares evidenced by
the receipts.
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DESCRIPTION OF WARRANTS
We
may issue warrants for the purchase of common stock, preferred stock,
depositary shares, debt securities or units.
Warrants may be issued independently or together with common stock,
preferred stock, depositary shares, debt securities or units, and the warrants
may be attached to or separate from such securities. We may issue warrants directly or under a
warrant agreement to be entered into between us and a warrant agent. We will
name any warrant agent in the applicable prospectus supplement. Any warrant
agent will act solely as our agent in connection with the warrants of a
particular series and will not assume any obligation or relationship of agency
or trust for or with any holders or beneficial owners of warrants.
The
following is a description of the general terms and provisions of any warrants
we may issue and may not contain all the information that is important to you.
You can access complete information by referring to the applicable prospectus
supplement. In the applicable prospectus supplement, we will describe the terms
of the warrants and any applicable warrant agreement, including, where
applicable, the following:
·
the offering
price and aggregate number of warrants offered;
·
the designation
and terms of the securities with which the warrants are issued and the number
of warrants issued with each such security;
·
the date on and
after which the warrants and the related securities will be separately
transferable;
·
in the case of
warrants to purchase common stock, preferred stock, depositary shares or units,
the number of shares of common stock, preferred stock, depositary shares or
units, as the case may be, purchasable upon the exercise of one warrant and the
price at which these securities may be purchased upon such exercise;
·
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 this principal
amount of debt securities may be purchased upon exercise;
·
the effect of
any merger, consolidation, sale or other disposition of our business on the
warrant agreement and the warrants;
·
the terms of
any rights to redeem or call the warrants;
·
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 agreement and warrants may be modified;
·
a discussion of
any material U.S. federal income tax considerations 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.
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DESCRIPTION OF PURCHASE CONTRACTS
We
may issue purchase contracts, including contracts obligating holders to
purchase from us, and for us to sell to holders, a specific or varying number
of debt securities, shares of common stock or preferred stock, depositary
shares, warrants, or any combination of the above, at a future date or
dates. Alternatively, the purchase
contracts may obligate us to purchase from holders, and obligate holders to
sell to us, a specific or varying number of debt securities, shares of common
stock or preferred stock, depositary shares, warrants, or any combination of
the above. The price of the securities
subject to the purchase contracts may be fixed at the time the purchase
contracts are issued or may be determined by reference to a specific formula
described in the purchase contracts. We
may issue purchase contracts separately or as a part of units, each consisting
of a purchase contract and one or more of the other securities described in
this prospectus or securities of third parties, including U.S. Treasury
securities, securing the holders obligations under the purchase contract. If we issue a purchase contract as part of a
unit, the applicable prospectus supplement will state whether the purchase
contract will be separable from the other securities in the unit before the
purchase contract settlement date. The
purchase contracts may require us to make periodic payments to holders or vice
versa and the payments may be unsecured or pre-funded on some basis. The purchase contracts may require holders to
secure the holders obligations in a manner specified in the applicable
prospectus supplement, and in certain circumstances, we may deliver newly
issued prepaid purchase contracts, often known as prepaid securities, upon
release to a holder of any collateral securing such holders obligations under
the original purchase contract.
The
applicable prospectus supplement will describe the terms of any purchase
contracts in respect of which this prospectus is being delivered, including, to
the extent applicable, the following:
·
whether the
purchase contracts obligate the holder or us to purchase or sell, or both
purchase and sell, the securities subject to purchase under the purchase
contract, and the nature and amount of each of those securities, or the method
of determining those amounts;
·
whether the
purchase contracts are to be prepaid or not;
·
whether the
purchase contracts will be issued as part of a unit and, if so, the other
securities comprising the unit;
·
whether the
purchase contracts are to be settled by delivery, or by reference or linkage to
the value, performance, or level of the securities subject to purchase under
the purchase contract;
·
any
acceleration, cancellation, termination, or other provisions relating to the
settlement of the purchase contracts; and
·
whether the
purchase contracts will be issued in fully registered or global form.
Material U.S. federal income
tax consideration applicable to the purchase contracts will also be discussed
in the applicable prospectus supplement.
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DESCRIPTION OF DEBT SECURITIES
This
section outlines some of the provisions of the debt securities we may issue and
the indenture and supplemental indentures pursuant to which they may be
issued. This description may not contain
all of the information that is important to you and is qualified in its
entirety by reference to the form of indenture and the applicable supplemental
indenture with respect to the debt securities of any particular series. The specific terms of any series of debt
securities will be described in the applicable prospectus supplement. If so described in a particular supplement,
the specific terms of any series of debt securities may differ from the general
description of terms presented below.
We
may issue secured or unsecured debt securities.
Our debt securities will be issued under an indenture to be entered into
between us and a trustee to be designated by us, a form of which is filed as an
exhibit to the registration statement of which this prospectus forms a
part. Our debt securities may be
convertible into our common stock or other of our securities.
When
we offer to sell a particular series of debt securities, we will describe the
specific terms of the series in a supplement to this prospectus. We will also indicate in the prospectus
supplement whether the general terms and provisions described in this prospectus
apply to a particular series of debt securities. To the extent the information
contained in the prospectus supplement differs from this summary description,
you should rely on the information in the prospectus supplement.
Unless
otherwise specified in a supplement to this prospectus, the debt securities
will be the direct, unsecured obligations of our company and will rank equally
with all of our other unsecured and unsubordinated indebtedness. The holders of our debt securities will be
structurally subordinated to holders of any indebtedness (including trade
payables) of any of our subsidiaries.
In
the event that any series of debt securities will be subordinated to other
indebtedness that we have outstanding or may incur, the terms of the
subordination will be set forth in the prospectus supplement relating to such
debt securities.
We
have described select portions of the indenture below. This description may not
contain all of the information that is important to you. The form of indenture
has been included as an exhibit to the registration statement of which this
prospectus is a part, and you should read the indenture for provisions that may
be important to you. In the summary below, we have included references to the
section numbers of the indenture so that you can easily locate these provisions.
General
The
terms of each series of debt securities will be established by or pursuant to a
resolution of our board of directors and set forth or determined in the manner
provided in a resolution of our board of directors, in an officers certificate
or by a supplemental indenture. (Section 2.02)
We
may issue an unlimited amount of debt securities under the indenture that may
be in one or more series with the same or various maturities, at par, at a
premium, or at a discount. When we offer
a particular series of debt securities, we will identify the title of the debt
securities, the trustee or trustees (to which we refer in this description
collectively as the trustee) and the aggregate principal amount of the debt
securities we are offering, and we will describe the following terms of the
debt securities, if applicable:
·
the price or
prices (expressed as a percentage of the principal amount) at which we will
issue the debt securities;
·
any limit on
the aggregate principal amount of the debt securities;
·
the date or
dates on which we will pay the principal on the debt securities;
·
the rate or
rates (which may be fixed or variable) per annum or, if applicable, the method
used to determine the rate or rates (including any rate or rates determined by
reference to any commodity, commodity index, stock exchange index or financial
index) at which the debt securities will bear interest, the date or dates from
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which interest will accrue, the date or dates on which interest will
commence and be payable and any regular record date for the interest payable on
any interest payment date;
·
the place or
places where principal of and interest on the debt securities will be payable,
where the debt securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon us in respect of the debt
securities and the indenture may be served, and the method of such payment, if
by wire transfer, mail or other means;
·
the terms and
conditions on which we may redeem the debt securities;
·
any obligations
we have to redeem or purchase the debt securities pursuant to any sinking fund
or analogous provisions or at the option of a holder of debt securities and the
date or dates on which or period or periods within which, the price or prices
at which and the other detailed terms and provisions upon which the debt securities
will be redeemed or purchased pursuant to such obligations;
·
the
denominations in which the debt securities will be issued, if other than
denominations of $1,000 and integral multiples thereof;
·
whether the
debt securities will be issued as bearer or fully registered securities and, if
they are to be issued as fully registered securities, whether they will be in
the form of certificated debt securities or global debt securities;
·
the portion of
principal amount of the debt securities payable upon acceleration or
declaration of acceleration of the maturity date, if other than the principal
amount;
·
the currency of
denomination of the debt securities;
·
the designation
of the currency, currencies or currency units in which payment of principal of
and interest on the debt securities will be made;
·
if payments of
principal of or interest on the debt securities will be made in one or more
currencies or currency units other than that or those in which the debt
securities are denominated, the manner in which the exchange rate with respect
to these payments will be determined;
·
the terms, if
any, of subordination of the debt securities;
·
any provisions
relating to any security provided for the debt securities;
·
any addition to
or change in the events of default described in this prospectus or in the
indenture with respect to the debt securities and any change in the
acceleration provisions described in this prospectus or in the indenture with
respect to the debt securities;
·
any addition to
or change in the covenants described in this prospectus or in the indenture
with respect to the debt securities;
·
any provisions
relating to conversion of any debt securities into equity interests, including
the conversion price and the conversion period, whether conversion will be
mandatory, at the option of the holders of the debt securities or at our
option, events requiring an adjustment of the conversion price, and provisions
affecting conversion if the debt securities are redeemed;
·
any exchange
features of the debt securities;
·
whether any
underwriter(s) will act as market maker(s) for the debt securities;
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·
the extent to
which a secondary market for the debt securities is expected to develop;
·
any addition to
or change in the provisions relating to satisfaction and discharge of the
indenture described in this prospectus with respect to the debt securities, or
in the provisions relating to legal defeasance or covenant defeasance under the
indenture described in this prospectus with respect to the debt securities;
·
any addition to
or change in the provisions relating to modification of the indenture both with
and without the consent of holders of debt securities issued under the indenture;
·
any other terms
or provisions of the debt securities, which may supplement, modify or delete
any provision of the indenture as it applies to that series; and
·
any registrars,
paying agents, service agents, depositaries, interest rate calculation agents,
exchange rate calculation agents or other agents with respect to the debt
securities. (Section 2.02)
We
will provide you with information on the material United States federal income
tax considerations and other special considerations applicable to any series of
debt securities in the applicable prospectus supplement.
The
indenture does not limit our ability to issue convertible or subordinated debt
securities. Any conversion or
subordination provisions of a particular series of debt securities will be set
forth in the resolution of our board of directors, the officers certificate or
supplemental indenture related to that series of debt securities and will be
described in the relevant prospectus supplement.
We
may issue debt securities that provide for an amount less than their stated
principal amount to be due and payable upon declaration of acceleration of
their maturity pursuant to the terms of the indenture.
One
or more series of debt securities may be sold at a discount to their stated principal
amount or may bear no interest or interest at a rate which at the time of
issuance is below market rates. One or more series of debt securities may be
variable rate debt securities that may be exchanged for fixed rate debt
securities.
Debt
securities may be issued where the amount of principal and/or interest payable
is determined by reference to one or more currency exchange rates, commodity
prices, commodity indices, stock exchange indices, financial indices, equity
indices or other factors. Holders of
such securities may receive a principal amount or a payment of interest that is
greater than or less than the amount of principal or interest otherwise payable
on such dates, depending upon the value of the applicable currencies,
commodities, commodity indices, stock exchange indices, financial indices,
equity indices or other factors. Information as to the methods for determining
the amount of principal or interest, if any, payable on any date, the
currencies, commodities, commodity indices, stock exchange indices, financial
indices, equity indices or other factors to which the amount payable on such
date is linked and certain additional United States federal income tax
considerations will be set forth in the applicable prospectus supplement.
If
we denominate the purchase price of any of the debt securities in a foreign
currency or currencies or a foreign currency unit or units, or if the principal
of and interest on any series of debt securities is payable in a foreign
currency or currencies or a foreign currency unit or units, we will provide you
with information on the restrictions, elections, general United States federal
tax considerations, specific terms and other information with respect to that
issue of debt securities and such foreign currency or currencies or foreign
currency unit or units in the applicable prospectus supplement.
When
we determine to issue debt securities, we will instruct the trustee to
authenticate for issuance such debt securities in a principal amount that we
will provide in a resolution of our board of directors, in an officers
certificate or by a supplemental indenture.
Our instructions may authorize the trustee to authenticate and deliver
such debt securities upon our oral or electronic instructions or the oral or
electronic instructions of our authorized agent or agents. (Section 2.03)
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Transfer
and Exchange
We
expect most debt securities to be issued in denominations of $1,000 and
integral multiples thereof. Each debt security will be represented by either
one or more global securities deposited with and registered in the name of a
depositary to be designated by us in the applicable prospectus supplement, or a
nominee (we refer to any debt security represented by a global security as a book-entry
debt security), or by a certificate issued in definitive registered or bearer
form (we refer to any fully registered debt security represented by a
certificate as a registered certificated debt security), as set forth in the
applicable prospectus supplement. Except
as set forth under the heading Global Securities below, book-entry debt
securities will not be issuable in certificated form.
You
may transfer or exchange registered certificated debt securities at any office
we maintain for this purpose in accordance with the terms of the
indenture. No service charge will be
made for any transfer or exchange of registered certificated debt securities,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or exchange. (Section 2.07)
You
may effect the transfer of registered certificated debt securities, and the
right to receive the principal of and interest on those registered certificated
debt securities, only by surrendering the certificate representing those
registered certificated debt securities and the issuance by us or the trustee
of a certificate to the new holder. (Section 2.07)
Global
Securities
The
debt securities of a series may be issued in whole or in part in the form of
one or more global securities that will be deposited with, or on behalf of, a
depositary (the depositary) identified in the prospectus supplement. Global securities will be issued to the
depositary in registered certificated form and in either temporary or
definitive form. Unless and until it is
exchanged in whole or in part for the individual debt securities, a global
security may not be transferred except as a whole by the depositary for such
global security to a nominee of such depositary or by a nominee of such
depositary to such depositary or another nominee of such depositary or by such
depositary or any such nominee to a successor of such depositary or a nominee
of such successor. The specific terms of
the depositary arrangement with respect to any debt securities of a series and
the rights of and limitations upon owners of beneficial interests in a global
security will be described in the applicable prospectus supplement. (Section 2.14)
No
Protection in the Event of a Change of Control or a Highly Leveraged
Transaction
Unless
we state otherwise in the applicable prospectus supplement, the debt securities
will not contain any provisions which may afford holders of the debt securities
protection in the event we have a change in control or in the event of a highly
leveraged transaction (whether or not such transaction results in a change in
control) that could adversely affect holders of debt securities.
Covenants
We
will set forth in the applicable prospectus supplement any restrictive covenants
applicable to the particular debt securities being issued.
Subordination
Debt
securities of a series may be subordinated, which we refer to as subordinated
debt securities, to senior indebtedness (as will be defined in the applicable
prospectus supplement) to the extent set forth in the applicable prospectus
supplement.
Consolidation,
Merger and Sale of Assets
We
may not consolidate with or merge with or into, or sell, lease, transfer,
convey, or otherwise dispose of or assign all or substantially all of our
properties and assets to, any entity or enter into a plan of liquidation
unless:
·
we are the
resulting or surviving corporation in such consolidation or merger or the
successor entity in the
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transaction (if other than us)(or, in the case of a plan of
liquidation, any entity to which our properties or assets are transferred), is
a corporation organized and validly existing under the laws of any U.S.
domestic jurisdiction and expressly assumes, by supplemental indenture, our
obligations on the debt securities and under the indenture; and
·
immediately
after giving effect to the transaction, no event of default under the
indenture, and no event which, after notice or lapse of time, or both, would
become an event of default under the indenture, shall have occurred and be
continuing.
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into or transfer
all or part of its properties and assets to us or any of our other
subsidiaries. (Section 5.01)
Events of
Default
An
event of default means, with respect to any series of debt securities, any of
the following:
·
default in the
payment of any interest upon any debt security of that series when it becomes
due and payable, and continuance of that default for a period of 30 consecutive
days;
·
default in the
payment of principal of any debt security of that series when and as due and
payable;
·
default on any
obligation to deposit any sinking fund payment when and due and payable in
respect of any debt security of that series;
·
default in the
performance or breach of any other covenant or warranty by us in the indenture
or any debt security (other than a covenant or warranty that has been included
in the indenture solely for the benefit of a series of debt securities other
than that series), which default continues uncured for a period of 60 days
after we receive written notice from the trustee or we and the trustee receive
written notice from the holders of not less than 25% in principal amount of the
outstanding debt securities of that series as provided in the indenture;
·
certain events
of bankruptcy, insolvency or reorganization with respect to us; and
·
any other event
of default provided with respect to debt securities of that series that is
described in the applicable prospectus supplement. (Section 6.01)
No
event of default with respect to a particular series of debt securities (except
as to certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an event of default with respect to any other series of debt
securities. The occurrence of certain
events of default or an acceleration under the indenture may constitute a
default under certain of our other indebtedness outstanding from time to time,
as may be provided in the terms governing that other indebtedness.
If
an event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing, then the trustee or the holders of not
less than 25% in principal amount of the outstanding debt securities of that
series may, by a notice in writing to us (and to the trustee if given by the
holders), declare to be due and payable immediately the principal of (or, if
the debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) and accrued
and unpaid interest, if any, on all debt securities of that series. In the case
of an event of default resulting from certain events of bankruptcy, insolvency
or reorganization, the principal (or such specified amount) of and accrued and
unpaid interest, if any, on all outstanding debt securities will become and be
immediately due and payable without any declaration or other act on the part of
the trustee or any holder of outstanding debt securities. (Section 6.02)
At
any time after a declaration of acceleration with respect to debt securities of
any series has been made, but before a judgment or decree based on the
acceleration has been obtained, the holders of a majority in principal amount
of the outstanding debt securities of that series may rescind and annul the
acceleration if all events of default, other than the non-payment of
accelerated principal and interest, if any, with respect to debt securities of
that series, have been cured or waived (and certain other conditions have been
satisfied) as provided in the indenture. (Section 6.02) We refer you to the
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prospectus supplement
relating to any series of debt securities that are discount securities for the
particular provisions relating to acceleration of a portion of the principal
amount of such discount securities upon the occurrence of an event of default.
The
indenture provides that the trustee will be under no obligation to exercise any
of its rights or powers under the indenture unless the trustee receives
reasonable security or indemnity satisfactory to it against any cost, expense
or liability. (Section 7.02(f))
Subject to certain rights of the trustee, 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 trustee or exercising any trust or power conferred on
the trustee with respect to the debt securities of that series. (Section 6.05)
No
holder of any debt security of any series will have any right to institute any
proceeding, judicial or otherwise, with respect to the indenture or such debt
securities for any remedy under the indenture, unless the trustee for such debt
securities:
·
has failed to
act for a period of 60 days after receiving notice of a continuing event of
default with respect to such debt securities from such holder and a request to
act by holders of not less than 25% in principal amount of the outstanding debt
securities of that series;
·
has been
offered indemnity satisfactory to it in its reasonable judgment; and
·
has not
received from the holders of a majority in principal amount of the outstanding
debt securities of that series a direction inconsistent with that request. (Section 6.06)
Notwithstanding
the foregoing, the holder of any debt security will have an absolute and
unconditional right to receive payment of the principal of and any interest on
that debt security on or after the due dates expressed in that debt security
and to institute suit for the enforcement of payment. (Section 6.07)
The
indenture requires us, within 120 days after the end of our fiscal year, to
furnish to the trustee an officers certificate as to compliance with the
indenture. (Section 4.04) The
indenture provides that the trustee may withhold notice to the holders of debt
securities of any series of any default (except in payment of the principal of
or interest on any debt securities of that series) with respect to debt
securities of that series if it in good faith determines that withholding
notice is in the interest of the holders of those debt securities. (Section 7.05)
Modification
and Waiver
Generally,
we may amend the indenture with the consent of, and our compliance with provisions
of the indenture may be waved by, the holders of a majority in principal amount
of the outstanding debt securities of each series affected by the amendment or
waiver. However, we may not make any or
amendment without the consent of, and our compliance with provisions of the
indenture requires the waiver of, each holder of the affected debt securities
if that amendment or waiver would:
·
reduce the
principal of or change the fixed maturity of any debt security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or
analogous obligation with respect to any series of debt securities;
·
reduce the rate
of or extend the time for payment of interest (including default interest) on
any debt security;
·
reduce the
principal amount of discount securities payable upon acceleration of maturity;
·
waive a
redemption payment, or change any of the other redemption provisions, with
respect to any debt security, except as specifically set forth in the
applicable resolution of our board of directors, the officers certificate or
the supplemental indenture establishing the terms and conditions of such debt
securities;
·
make the
principal of or interest on any debt security payable in a currency other than
that stated in the debt
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security;
·
waive a default
in the payment of the principal of or interest on any debt security (except a
rescission of acceleration of the debt securities of any series by the holders
of a majority in aggregate principal amount of the then outstanding debt
securities of that series and a waiver of the payment default that resulted
from such acceleration);
·
make any change
to certain provisions of the indenture relating to, among other things, the
right of holders of debt securities to receive payment of the principal of and
interest on those debt securities and to institute suit for the enforcement of
any such payment, and certain waivers or amendments; or
·
reduce the
amount of debt securities whose holders must consent to an amendment,
supplement or waiver. (Section 9.02)
In
addition, the indenture permits us and the trustee to make certain routine
amendments to the indenture without the consent of any holder of debt
securities. (Section 9.01)
Discharge
Our
obligations under the indenture will be discharged as to a series of debt
securities when all of the debt securities of that series have been delivered
to the trustee for cancellation or, alternatively, when the following
conditions are met:
·
all of the debt
securities of that series that have not been delivered for cancellation have
become due and payable, whether by reason of the mailing of a notice of
redemption or otherwise, or will become due and payable within one year;
·
we have deposited
with the trustee in trust for the benefit of the holders of such debt
securities funds in an amount sufficient to pay all of our indebtedness owing
on such debt securities; and
·
we have paid
all other amounts due and payable by us under the indenture;
·
we have
instructed the trustee to apply the deposited money toward the payment of such
debt securities at maturity or on the date of redemption, as the case may be. (Section 8.01)
Legal
Defeasance and Covenant Defeasance
The
indenture provides that, upon the satisfaction of certain conditions specified
in the indenture:
·
we may be
discharged from any and all obligations in respect of the debt securities of
any series (except for certain obligations to register the transfer or exchange
of debt securities of such series, to replace stolen, lost or mutilated debt
securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) (we refer
to this below as legal defeasance); or
·
we may omit to
comply with the covenants set forth in the indenture, as well as any additional
covenants which may be set forth in the applicable prospectus supplement, and
any omission to comply with those covenants will not constitute a default with
respect to the debt securities of that series (we refer to this below as covenant
defeasance). (Section 8.02)
The
conditions to the legal defeasance or covenant defeasance of a series of debt
securities as described above include:
·
depositing with
the trustee money and/or non-callable obligations guaranteed by the U.S.
government (which we refer to below as U.S. government obligations) that,
through the payment of interest and principal in accordance with their terms,
will provide money in an amount sufficient in the opinion of a nationally
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recognized firm of independent public accountants to pay and discharge
each installment of principal of and interest on, and any mandatory sinking
fund payments in respect of, the debt securities of that series on the stated
maturity of those payments in accordance with the terms of the indenture and
those debt securities;
·
in the case of
legal defeasance, delivering to the trustee an opinion of counsel confirming
that we have received an Internal Revenue Service tax ruling or that there has
been a change in applicable United States federal income tax law, in either
case to the effect that, and based thereon, the holders of the debt securities
of that series will not recognize income, gain or loss for United States
federal income tax purposes as a result of the deposit and related legal
defeasance and will be subject to United States federal income tax on the same
amounts and in the same manner and at the same times as would have been in the
case if the deposit and related legal defeasance had not occurred;
·
in the case of
covenant defeasance, delivering to the trustee an opinion of counsel to the
effect that the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income tax purposes as
a result of the deposit and related covenant defeasance and will be subject to
United States federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if the deposit and related
covenant defeasance had not occurred;
·
there being no
continuing default with respect to the debt securities of that series on the
date of deposit of the money and/or U.S. government obligations referred to
above (other than a default resulting from the borrowing of funds to be applied
to that deposit);
·
the defeasance
not resulting in a breach or violation of, or default under, any of our or our
subsidiaries material agreements (other than any such default resulting solely
from the borrowing of funds to be applied to the deposit referred to above and
the grant of any lien on that deposit in favor of the trustee and/or the
holders of the debt securities of that series); and
·
delivering to
the trustee a certificate stating that the deposit was not made with the intent
of preferring the holders of the debt securities of that series over any other
of our creditors or with the intent of defeating, hindering, delaying or
defrauding any other of our creditors. (Section 8.03)
Regarding
the Trustee
The
indenture provides that, except during the continuance of an event of default
or any event, act or condition that, after notice or the passage of time or
both, would be an event of default, the trustee will perform only such duties
as are specifically set forth in the indenture.
During the continuance of an event of default or any event, act or
condition that, after notice or the passage of time or both, would be an event
of default, the trustee will exercise such rights and powers vested in it under
the indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such persons own affairs. (Section 7.01)
The
indenture and provisions of the Trust Indenture Act that are incorporated by
reference in the indenture contain limitations on the rights of the trustee,
should it become one of our creditors, to obtain payment of claims in certain
cases or to realize on certain property received by it in respect of any such
claim as security or otherwise. The trustee is permitted to engage in other
transactions with us or any of our affiliates; provided, however, that if it
acquires any conflicting interest (as defined in the indenture or in the Trust
Indenture Act), it must eliminate such conflict or resign. (Section 7.10)
Governing
Law
The
indenture and the debt securities will be governed by and construed in
accordance with the internal laws of the State of New York. (Section 10.08)
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DESCRIPTION OF UNITS
The
following description, together with the additional information we include in
any applicable prospectus supplement, summarizes the material terms and
provisions of the units that we may offer under this prospectus. Units may be offered independently or
together with common stock, preferred stock, depositary shares, debt securities
and/or warrants offered by any prospectus supplement, and may be attached to or
separate from those securities.
While
the terms we have summarized below will generally apply to any future units
that we may offer under this prospectus, we will describe the particular terms
of any series of units that we may offer 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 incorporate by reference into the registration statement of which this
prospectus is a part the form of unit agreement, including a form of unit
certificate, if any, that describes the terms of the series of units we are
offering before the issuance of the related series of units. The following summaries of material
provisions of the units and the unit agreements are subject to, and qualified
in their entirety by reference to, all the provisions of the unit agreement
applicable to a particular series of units.
We urge you to read the applicable prospectus supplements related to the
units that we sell under this prospectus, as well as the complete unit
agreements that contain the terms of the units.
General
We
may issue units consisting of common stock, preferred stock, depositary shares,
debt securities, warrants, or any combination thereof. 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 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, including the following:
·
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 the 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 Description
of Common Stock, Description of Preferred Stock, Description of Depositary
Shares, Description of Warrants, Description of Purchase Contracts, Description
of Debt Securities, and Description of Units will apply to each unit and to
any common stock, preferred stock, depositary share, 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 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
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, without the consent of
the related unit agent or the holder of any other unit, may enforce by
appropriate legal action its rights as holder under any security included in
the unit.
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Title
We,
the 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 purposes and as the person entitled to exercise the rights attaching to
the units so requested, despite any notice to the contrary.
CERTAIN ANTI-TAKEOVER AND
INDEMNIFICATION PROVISIONS OF
OUR CERTIFICATE OF INCORPORATION AND BY-LAWS AND DELAWARE
LAW
The
following is a summary of certain anti-takeover and indemnification provisions
of Delaware law and our certificate of incorporation and bylaws which affect us
and our stockholders. The description below is intended as only a summary. You
can access complete information by referring to Delaware General Corporation
Law and our certificate of incorporation and bylaws, and the following summary
is qualified in its entirety by reference to such documents and the applicable
provisions of the Delaware General Corporation Law.
Board Composition, Removal of Directors and Filling Vacancies
.
In
accordance with our certificate of incorporation, our board is divided into
three classes serving staggered three-year terms, with one class being elected
each year. Our certificate of
incorporation also provides that, for so long as the board is classified,
directors may be removed only for cause and then only by the affirmative vote
of the holders of at least two-thirds of the shares of capital stock issued and
outstanding and entitled to vote.
Furthermore, unless and until filled by the stockholders, any vacancy on
our board of directors, however occurring, including a vacancy resulting from
an increase in the size of our board, may be filled by the affirmative vote of
a majority of our directors then in office even if less than a quorum, or by a
sole director. Any amendment to the
provisions of the certificate of incorporation with respect to these matters
must be approved by at least 75% of the outstanding shares of capital stock
entitled to vote on the amendment.
Blank Check Preferred Stock
.
We
have shares of preferred stock available for future issuance without
stockholder approval, except to the extent holders of preferred stock have a
consent right under the terms of their preferred stock. The existence of
authorized but unissued shares of preferred stock may enable our board of
directors to render more difficult or to discourage an attempt to obtain
control of us by means of a merger, tender offer, proxy contest or otherwise.
For example, if in the due exercise of its fiduciary obligations, our board of
directors were to determine that a takeover proposal is not in the best
interests of us or our stockholders, our board of directors could cause shares
of preferred stock to be issued without stockholder approval in one or more
private offerings or other transactions that might dilute the voting or other
rights of the proposed acquirer or insurgent stockholder or stockholder group.
In this regard, our certificate of incorporation grants our board of directors
broad power to establish the rights and preferences of authorized and unissued
shares of preferred stock. The issuance of shares of preferred stock could
decrease the amount of earnings and assets available for distribution to
holders of shares of common stock. The issuance may also adversely affect the
rights and powers, including voting rights, of these holders and may have the
effect of delaying, deterring or preventing a change in control of us.
Section 203 of the Delaware General Corporation Law
We
are subject to the provisions of Section 203 of the Delaware General
Corporation Law. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a business
combination with an interested stockholder for a three-year period following
the time that this stockholder becomes an interested stockholder, unless the
business combination is approved in a prescribed manner. A business combination includes, among
other things, a merger, asset or stock sale or other transaction resulting in a
financial benefit to the interested stockholder. An interested stockholder is a person who,
together with affiliates and associates, owns, or did own within three years
prior to the determination of interested stockholder status, 15% or more of the
corporations voting stock. Under Section 203,
a business combination between a corporation and an interested stockholder is
prohibited unless it satisfies one of the following conditions:
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·
before the
stockholder became interested, the board of directors approved either the
business combination or the transaction which resulted in the stockholder
becoming an interested stockholder;
·
upon
consummation of the transaction which 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 voting stock outstanding,
shares owned by persons who are directors and also officers, and employee stock
plans, in some instances; or
·
at or after the
time the stockholder became interested, the business combination was approved
by the board of directors of the corporation and authorized at an annual or
special meeting of the stockholders by the affirmative vote of at least
two-thirds of the outstanding voting stock which is not owned by the interested
stockholder.
Indemnification of Directors and Officers
Section 102(b)(7) of
Delaware General Corporation Law enables a corporation in its original
certificate of incorporation or an amendment thereto validly approved by
stockholders to eliminate or limit personal liability of members of its board
of directors for violations of a directors fiduciary duty. Article 9 of our certificate of
incorporation eliminates in certain circumstances the liability of our
directors for monetary damages for breach of their fiduciary duty as
directors. This provision does not
eliminate the liability of a director (i) for a breach of the directors
duty of loyalty to us or our stockholders, (ii) for acts or omissions by
the director not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for a willful or negligent declaration of
an unlawful dividend, stock purchase or redemption or (iv) for
transactions from which the director derived an improper personal benefit.
Section 145
of Delaware General Corporation Law provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further provides that a
corporation similarly may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite an adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
In
accordance with Section 145, our bylaws include provisions to indemnify
our officers and directors and other persons against expenses, judgments, fines
and amounts paid in settlement in connection with threatened, pending or
completed suits of proceedings against such persons by reason of serving or
having served as officers, directors or in other capacities, except in relation
to matters with respect to which such persons shall be determined not to have
acted in good faith, unlawfully or in the best interests our company. With respect to matters as to which our
officers and directors and others are determined to be liable for misconduct or
negligence in the performance of their duties, our bylaws provide for
indemnification only to the extent that the we determine that such person acted
in good faith and in a manner not opposed to our best interests.
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However,
insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, or persons controlling us pursuant to
Delaware state law, as well as the foregoing charter and bylaw provisions, we
have been informed that in the opinion of the SEC, such indemnification as it
relates to federal securities laws is against public policy and, therefore,
unenforceable. Further, insofar as
limitations may be so permitted pursuant to Delaware state law, as well as the
foregoing charter and bylaw provisions, such limitation of liabilities does not
apply to any liabilities arising under federal securities laws.
In
addition, Section 145 permits us to purchase and maintain insurance on
behalf of any of our officers, directors, employees or agents or any person
serving at our request as an officer, director, employee or agent of another
corporation serving as described above whether or not we would have the power
to indemnify such person under Section 145. We have a directors and officers liability
policy that insures our officers and directors against damages arising out of
certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
In
addition certain directors and officers have been granted contractual
indemnification rights, pursuant to which they will be entitled to
indemnification from us under certain circumstances.
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PLAN OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following
ways from time to time:
·
through agents
to the public or to investors;
·
to one or more
underwriters or dealers for resale to the public or to investors;
·
in at the
market offerings, within the meaning of Rule 415(a)(4) of the
Securities Act of 1933, as amended, to or through a market maker or into an
existing trading market, or an exchange or otherwise;
·
directly to
investors in privately negotiated transactions; or
·
through a
combination of these methods of sale.
The
securities that we distribute by any of these methods may be sold, in one or
more transactions, at:
·
a fixed price
or prices, which may be changed;
·
market prices
prevailing at the time of sale;
·
prices related
to prevailing market prices; or
·
negotiated
prices.
We
will set forth in a prospectus supplement the terms of the offering of our
securities, including:
·
the name or
names of any agents or underwriters;
·
the purchase
price of our securities being offered 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 commissions and other items constituting agents
or underwriters compensation;
·
the public
offering price;
·
any discounts
or concessions allowed or reallowed or paid to dealers; and
·
any securities
exchanges on which such common stock may be listed.
Underwriters
Underwriters,
dealers and agents that participate in the distribution of the securities may
be underwriters as defined in the Securities Act and any discounts or commissions
they receive from us and any profit on their resale of the securities may be
treated as underwriting discounts and commissions under the Securities
Act. We will identify in the applicable
prospectus supplement any underwriters, dealers or agents and will describe
their compensation. We may have agreements with the underwriters, dealers and
agents to indemnify them against specified civil liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with or
perform services for us or our subsidiaries in the ordinary course of their
businesses.
If
we use underwriters for a sale of securities, the underwriters will acquire the
securities for their own account. The
underwriters may resell the securities in one or more transactions, including
negotiated transactions, at a fixed public
28
Table of Contents
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. The underwriters will be obligated to
purchase all the securities offered if they purchase any of the securities
offered. We may change from time to time any initial public offering price and
any discounts or concessions the underwriters allow or reallow or pay to
dealers. We may use underwriters with
whom we have a material relationship. We
will describe in the prospectus supplement naming the underwriters the nature
of any such relationship.
If
indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by
particular institutions to purchase securities from us at the public offering
price set forth in such prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in
such prospectus supplement. Each delayed delivery contract will be for an
amount no less than, and the aggregate principal amounts of securities sold
under delayed delivery contracts shall be not less nor more than, the
respective amounts stated in the applicable prospectus supplement. Institutions
with which such contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but will in all cases be
subject to our approval. The obligations of any purchaser under any such
contract will be subject to the conditions that (a) the purchase of the
securities shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which the purchaser is subject, and (b) if
the securities are being sold to underwriters, we shall have sold to the
underwriters the total principal amount of the securities less the principal
amount thereof covered by the contracts. The underwriters and such other agents
will not have any responsibility in respect of the validity or performance of
such contracts.
Agents
We
may designate agents who agree to use their reasonable efforts to solicit
purchases for the period of their appointment or to sell securities on a
continuing basis.
Direct
Sales
We
may also sell securities directly to one or more purchasers without using
underwriters or agents.
Trading
Markets and Listing of Securities
Unless
otherwise specified in the applicable prospectus supplement, each class or
series of securities will be a new issue with no established trading market,
other than our common stock, which is traded on the Nasdaq Capital Market. We may elect to list any other class or
series of securities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will
not be obligated to do so and may discontinue any market making at any time
without notice. We cannot give any
assurance as to the liquidity of the trading market for any of the securities.
Stabilization
Activities
In
connection with an offering, an underwriter may purchase and sell securities in
the open market. These transactions may
include short sales, stabilizing transactions and purchases to cover positions
created by short sales. Shorts sales involve the sale by the underwriters of a
greater number of securities than they are required to purchase in the offering. Covered short sales are sales made in an
amount not greater than the underwriters option to purchase additional
securities from us, if any, in the offering.
If the underwriters have an over-allotment option to purchase additional
securities from us, the underwriters may close out any covered short position
by either exercising their over-allotment option or purchasing securities in
the open market. In determining the
source of securities to close out the covered short position, the underwriters
may consider, among other things, the price of securities available for
purchase in the open market as compared to the price at which they may purchase
securities through the over-allotment option.
Naked short sales are any sales in excess of such option or where the
underwriters do not have an over-allotment option. The underwriters must close out any naked
short position by purchasing securities in the open market. A naked short position is more likely to be
created if the underwriters are concerned that there may be downward pressure
on the price of the securities in the open market after pricing that could
adversely affect investors who purchase in the offering.
29
Table of Contents
Accordingly,
to cover these short sales positions or to otherwise stabilize or maintain the
price of the securities, the underwriters may bid for or purchase securities in
the open market and may impose penalty bids.
If penalty bids are imposed, selling concessions allowed to syndicate
members or other broker-dealers participating in the offering are reclaimed if
securities previously distributed in the offering are repurchased, whether in
connection with stabilization transactions or otherwise. The effect of these transactions may be to
stabilize or maintain the market price of the securities at a level above that
which might otherwise prevail in the open market. The impositions of a penalty bid may also
effect the price of the securities to the extent that it discourages resale of
the securities. The magnitude or effect
of any stabilization or other transactions is uncertain. These transactions may be effected on the
Nasdaq Capital Market or otherwise and, if commenced, may be discontinued at
any time.
EXPERTS
The
consolidated financial statements of Satcon Technology Corporation included in
our Annual Report on Form 10-K for the year ended December 31, 2009,
and the effectiveness our internal control over financial reporting as of December 31,
2009, have been audited by Caturano and Company, P.C., independent registered
public accounting firm, as indicated in their report with respect thereto,
which are incorporated by reference in this prospectus and elsewhere in the
registration statement. Such
consolidated financial statements are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
Certain
legal matters, including the legality of the securities offered, will be passed
upon for us by our counsel, Greenberg Traurig, LLP, Boston, Massachusetts. If the securities are distributed in an
underwritten offering, certain legal matters will be passed upon for the
underwriters by counsel identified in the applicable prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy
statements and other documents with the SEC. You may read and copy any document
we file at the SECs public reference room at 100 F Street, N.E., Room 1580,
Washington, DC 20549. You should call 1-800-SEC-0330 for more information on
the operation of the public reference room. Our SEC filings are also available
to you on the SECs Internet site at
www.sec.gov
. The SECs Internet site contains reports,
proxy and information statements, and other information regarding issuers that
file electronically with the SEC.
This prospectus is part of a
registration statement that we filed with the SEC. The registration statement
contains more information than this prospectus regarding us and our common
stock, including certain exhibits and schedules. You can obtain a copy of the
registration statement from the SEC at the address listed above or from the SECs
Internet site.
Our Internet address is
www.Satcon.com
. The information on our
Internet website is not incorporated by reference in this prospectus.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate
into this prospectus information that we file with the SEC in other documents.
This means that we can disclose important information to you by referring to
other documents that contain that information. Any information that we
incorporate by reference is considered part of this prospectus. The documents
and reports that we list below are incorporated by reference into this
prospectus. In addition, all documents and reports which we file pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus
are incorporated by reference in this prospectus as of the respective filing
dates of these documents and reports. Statements contained in documents that we
file with the SEC and that are incorporated by reference in this prospectus
will automatically update and supersede information contained in this
prospectus, including information in previously filed documents or reports that
have been incorporated by reference in this prospectus, to the extent the new
information differs from or is inconsistent with the old information.
30
Table of Contents
We have filed the following
documents with the SEC. These documents are incorporated herein by reference as
of their respective dates of filing:
(1)
Our Annual
Report on Form 10-K for the fiscal year ended December 31, 2009;
(2) Our Current Reports on Form 8-K filed on March 15, 2010
and April 28, 2010;
(3)
All of our
filings pursuant to the Exchange Act after the date of filing the initial
registration statement and prior to the effectiveness of the registration
statement; and
(4)
The description
of our common stock contained in our Registration Statement on Form 8-A
filed on November 6, 1992, including any amendments or reports filed for
the purpose of updating that description.
You may request a copy of
these documents, which will be provided to you at no cost, by contacting:
Satcon
Technology Corporation
27
Drydock Avenue
Boston,
MA 02210
Attn:
Investor Relations Department
(617) 897-2400
You should rely only on the
information contained in this prospectus, including information incorporated by
reference as described above, or any prospectus supplement that we have
specifically referred you to. We have not authorized anyone else to provide you
with different information. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents or that any document incorporated by
reference is accurate as of any date other than its filing date. You should not
consider this prospectus to be an offer or solicitation relating to the
securities in any jurisdiction in which such an offer or solicitation relating
to the securities is not authorized. Furthermore, you should not consider this
prospectus to be an offer or solicitation relating to the securities if the
person making the offer or solicitation is not qualified to do so, or if it is
unlawful for you to receive such an offer or solicitation.
31
Table of Contents
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The expenses in connection
with the issuance and distribution of the securities being registered are set
forth in the following table (all amounts except the registration fee are
estimated):
SEC
registration fee
|
|
$
|
3,565
|
|
Legal
fees and expenses
|
|
$
|
30,000
|
|
Accounting
fees and expenses
|
|
$
|
10,000
|
|
Printing
fees and expenses
|
|
$
|
10,000
|
|
Transfer
agent fees and expenses
|
|
$
|
5,000
|
|
Miscellaneous
expenses
|
|
$
|
16,435
|
|
|
|
|
|
Total Expenses
|
|
$
|
75,000
|
|
Item 15.
Indemnification of Directors and Officers.
Section 102 of the
Delaware General Corporation Law allows a corporation to eliminate the personal
liability of directors of a corporation to the corporation or its stockholders
for monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith, engaged
in intentional misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of Delaware corporate
law or obtained an improper personal benefit. The Registrant has included such
a provision in its certificate of incorporation. This provision reads as
follows:
To the maximum extent
permitted by Section 102(b)(7) of the General Corporation Law of
Delaware, a director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the
directors duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
Section 145 of the
General Corporation Law of Delaware provides that a corporation has the power
to indemnify a director, officer, employee or agent of the corporation and
certain other persons serving at the request of the corporation in related
capacities against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a party by
reason of such position, if such person shall have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful; provided that, in the
case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances. The Registrants bylaws include the
following provision:
Reference is made to Section 145
and any other relevant provisions of the General Corporation Law of the State
of Delaware. Particular reference is made to the class of persons, hereinafter
called Indemnitees, who may be indemnified by a Delaware corporation pursuant
to the provisions of such Section 145, namely, any person, or the heirs,
executors, or administrators of such person, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative,
by reason of the fact that such person is or was a director, officer, employee,
or agent of such corporation or is or was serving at the request of such
corporation as a director, officer, employee, or agent of such corporation or
is or was serving at the request of such corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust,
or other enterprise. The Corporation shall, and is hereby obligated to,
indemnify the Indemnitees, and each of them, in each and every situation where
the Corporation is
II-1
Table of Contents
obligated to make such
indemnification pursuant to the aforesaid statutory provisions. The Corporation
shall indemnify the Indemnitees, and each of them, in each and every situation
where, under the aforesaid statutory provisions, the Corporation is not
obligated, but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such indemnification with
respect to any situation covered under this sentence, (i) the Corporation
shall promptly make or cause to be made, by any of the methods referred to in
Subsection (d) of such Section 145, a determination as to whether
each Indemnitee acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation, and, in the
case of any criminal action or proceeding, had no reasonable cause to believe
that his conduct was unlawful, and (ii) that no such indemnification shall
be made unless it is determined that such Indemnitee acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best interests
of the Corporation, and, in the case of any criminal action or proceeding, had
no reasonable cause to believe that his conduct was unlawful.
The Registrant has purchased
directors and officers liability insurance which would indemnify its
directors and officers against damages arising out of certain kinds of claims
which might be made against them based on their negligent acts or omissions
while acting in their capacity as such.
In addition certain
directors and officers have been granted contractual indemnification rights,
pursuant to which they will be entitled to indemnification from the Registrant
under certain circumstances.
Item 16.
Exhibits.
The exhibits listed in the Exhibit Index
immediately preceding the exhibits are filed as part of this Registration
Statement on Form S-3.
Item 17.
Undertakings.
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, as amended (the Securities Act);
(ii)
To reflect in
the prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement. 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 percent 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 this Registration Statement or any material change to such
information in this Registration Statement;
provided,
however
, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended (the Exchange Act), that are
incorporated by reference in this Registration Statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
Registration Statement.
II-2
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(2) That, for the purposes of determining any liability under
the Securities Act, 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 the 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 to any purchaser:
(i) If the Registrant is relying on Rule 430B:
(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; or
(ii) If the Registrant is subject to Rule 430C,
each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such
date of first use.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act to any purchaser in the initial
distribution of the securities:
The
undersigned Registrant undertakes that in a primary offering of securities of
such undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, such 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;
II-3
Table of Contents
(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.
The undersigned Registrant
hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or
15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial
bona
fide
offering thereof.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
indemnification provisions described herein, 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 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 Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant
hereby undertakes 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 (Act) in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-4
Table of Contents
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on this 7
th
day of May, 2010.
|
SATCON
TECHNOLOGY CORPORATION
|
|
By:
|
|
|
|
/s/ Charles S. Rhoades
|
|
|
Charles S. Rhoades
|
|
|
Chief Executive Officer and President
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Charles S. Rhoades
|
|
|
|
|
Charles S. Rhoades
|
|
Chief Executive Officer,
President and Director
|
|
May 7, 2010
|
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
/s/ Donald R. Peck
|
|
|
|
|
Donald R. Peck
|
|
Chief Financial Officer,
|
|
May 7, 2010
|
|
|
(Principal
Financial Officer)
|
|
|
|
|
|
|
|
/s/ John W. Peacock
|
|
|
|
|
John W. Peacock
|
|
Controller and Chief
Accounting Officer
|
|
May 7, 2010
|
|
|
(Principal
Accounting Officer)
|
|
|
|
|
|
|
|
*
|
|
|
|
|
James L. Kirtley, Jr.
|
|
Director
|
|
May 7, 2010
|
|
|
|
|
|
*
|
|
|
|
|
John M. Carroll
|
|
Director (Chairman)
|
|
May 7, 2010
|
|
|
|
|
|
*
|
|
|
|
|
Daniel R. Dwight
|
|
Director
|
|
May 7, 2010
|
|
|
|
|
|
*
|
|
|
|
|
David J. Prend
|
|
Director
|
|
May 7, 2010
|
II-5
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*
|
|
|
|
|
Philip J. Deutch
|
|
Director
|
|
May 7, 2010
|
|
|
|
|
|
*
|
|
|
|
|
Robert G. Schoenberger
|
|
Director
|
|
May 7, 2010
|
*By:
|
/s/ John W. Peacock
|
|
John W. Peacock
|
|
Attorney-in-Fact
|
II-6
Table of Contents
EXHIBIT INDEX
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
|
|
|
**1.1
|
|
Form of Underwriting
Agreement.
|
|
|
|
4.1
|
|
Certificate
of Incorporation of the Registrant is incorporated herein by reference to
Exhibits to the Registrants Registration Statement on Form S-1 (File
No. 33-49286).
|
|
|
|
4.2
|
|
Certificate
of Amendment of Certificate of Incorporation of the Registrant, as filed with
the Secretary of State of the State of Delaware on May 12, 1997, is
incorporated herein by reference to Exhibits to the Registrants Quarterly
Report on Form 10-Q for the period ended March 31, 1997 (File
No. 1-11512).
|
|
|
|
4.3
|
|
Certificate
of Amendment of Certificate of Incorporation of the Registrant, as filed with
the Secretary of State of the State of Delaware on March 17, 1999, is
incorporated herein by reference to Exhibits to the Registrants Current
Report on Form 8-K dated August 25, 1999 (File No. 1-11512).
|
|
|
|
4.4
|
|
Certificate
of Amendment of Certificate of Incorporation of the Registrant, as filed with
the Secretary of State of the State of Delaware on March 15, 2000, is
incorporated by reference to Exhibits to the Registrants Annual Report on
Form 10-K for the year ended September 30, 2000 (File No. 1-11512).
|
|
|
|
4.5
|
|
Certificate
of Amendment of Certificate of Incorporation of the Registrant, as filed with
the Secretary of State of the State of Delaware on May 4, 2001, is
incorporated herein by reference to Exhibits to the Registrants Quarterly
Report on Form 10-Q for the period ended March 31, 2001 (File
No. 1-11512).
|
|
|
|
4.6
|
|
Certificate
of Designation of the Relative Rights and Preferences of the Series B
Convertible Preferred Stock of the Registrant, dated as of October 31,
2003, is incorporated herein by reference to Exhibits to the Registrants
Current Report on Form 8-K, as amended, dated October 31, 2003
(File No. 1-11512).
|
|
|
|
4.7
|
|
Certificate
of Amendment of Certificate of Incorporation of the Registrant, as filed with
the Secretary of State of the State of Delaware on March 23, 2006, is
incorporated by reference to Exhibits to the Registrants Quarterly Report on
Form 10-Q for the period ended April 1, 2006 (File
No. 1-11512).
|
|
|
|
4.8
|
|
Certificate
of Designation of the Relative Rights and Preferences of the Series C
Convertible Preferred Stock of the Registrant, dated as of November 8,
2007, is incorporated herein by reference to Exhibits to the Registrants
Current Report on Form 8-K, dated November 7, 2007 (File
No. 1-11512).
|
|
|
|
4.9
|
|
Certificate
of Amendment of Certificate of Incorporation of the Registrant, as filed with
the Secretary of State of the State of Delaware on December 20, 2007, is
incorporated by reference to Exhibits to the Registrants Current Report on
Form 8-K, dated December 19, 2007 (File No. 1-11512).
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|
|
|
4.10
|
|
Certificate
of Elimination of Series A Convertible Preferred Stock, as filed with
the Secretary of State of the State of Delaware on December 20, 2007, is
incorporated by reference to Exhibits to the Registrants Current Report on
Form 8-K, dated December 19, 2007 (File No. 1-11512).
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|
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**4.11
|
|
Form of
Common Stock Warrant Agreement.
|
|
|
|
**4.12
|
|
Form of
Preferred Stock Warrant Agreement.
|
|
|
|
**4.13
|
|
Form of
Certificate of Designation for Preferred Stock Issued Hereunder.
|
|
|
|
4.14
|
|
Form of
Indenture.
|
|
|
|
**4.15
|
|
Form of
Note.
|
Table of Contents
**4.16
|
|
Form of Depositary
Receipt for Depositary Shares.
|
|
|
|
**4.17
|
|
Form of
Deposit Agreement for Depositary Shares.
|
|
|
|
**4.18
|
|
Form of
Purchase Contract.
|
|
|
|
**4.19
|
|
Form of
Unit Agreement and Unit Certificate.
|
|
|
|
5.1
|
|
Opinion
of Greenberg Traurig LLP, counsel to the Registrant.
|
|
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12.1
|
|
Calculation
of Ratio of Earnings to Combined Fixed Charges and Preferred Dividends.
|
|
|
|
12.2
|
|
Calculation
of Ratio of Earnings to Fixed Charges.
|
|
|
|
23.1
|
|
Consent
of Greenberg Traurig LLP (included in Exhibit 5.1).
|
|
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|
*23.2
|
|
Consent
of Caturano and Company, P.C.
|
|
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|
24
.1
|
|
Power
of Attorney (contained in signature page).
|
|
|
|
**25.1
|
|
Statement
of Eligibility of Trustee.
|
* Filed herewith.
**
To be subsequently filed by
amendment or as an exhibit to a document to be incorporated or deemed to be
incorporated by reference to this registration statement, including a Current
Report on Form 8-K. However, the Statement of Eligibility of Trustee on Form
T-1 will be filed separately under the electronic form type 305B2.
Previously filed.
II-8
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