333-
WASHINGTON,
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
THE SECURITIES ACT OF 1933
GEVO, INC.
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Delaware | ||||
(State or other jurisdiction of incorporation or organization) | | | 87-0747704 (I.R.S. Employer Identification Number) | |
Copies
Deyan Spiridonov, Esq.
Teri O’Brien, Esq.
Paul Hastings
4747 Executive Drive, 12th Floor
San Diego, CA 92121
(858) 458-3000
1900 Sixteenth Street, Suite 1400
Denver, Colorado 80202
(303) 291-2300
(Approximate date of commencement of proposed sale to the public)
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Large accelerated filer ☐ | | Accelerated filer ☐ | ||||
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Non-accelerated filer ☒ | | Smaller reporting company ☒ | | |||
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities To Be Registered | Amount to be Registered | Proposed Maximum Offering Price | Amount of Registration Fee | |||
Unallocated Securities(1) | ||||||
Common Stock, par value $0.01 per share | (2) | (3) | ||||
Preferred Stock, par value $0.01 per share | (2) | (3) | ||||
Debt Securities | (2) | (3) | ||||
Warrants | (2) | (3) | ||||
Units | (2) | (3) | ||||
Common Stock, par value $0.01 per share(4) | 15,076,495 | (5) | ||||
Total | $130,000,000 | $7,755.41(2)(6) | ||||
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If an emerging growth company, indicate by check mark if the registrant has elected not |
Pursuant to Rule 429(a) underuse the Securities Act, the prospectus included in this registration statement is a combined prospectus relatingextended transition period for complying with any new or revised financial accounting standards provided pursuant to 15,076,495 sharesSection 7(a)(2)(B) of common stock underlying certain of the registrant’s outstanding warrants, as more fully described herein. Pursuant to Rule 429(b), this registration statement, upon effectiveness, also constitutes a post-effective amendment to the registrant’s registration statement on Form S-3, File No. 333-187893, initially filed on April 12, 2013, amended on May 13, 2013 and declared effective on May 15, 2013 (the “Prior Registration Statement”), which post-effective amendment shall hereafter become effective concurrently with the effectiveness of this registration statement and in accordance with Section 8(c) of the Securities Act.
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750,000,000
15,076,495 Shares of Common Stock
Issuable Upon Exercise of Outstanding Warrants
From time to time, we
This You should read this prospectus also relatesand any prospectus supplement carefully before you invest. The securities may be sold to the issuance of 15,076,495 shares of our common stock (the “Warrant Shares”) upon exercise of certain of our outstanding Warrants (as defined below under the heading “Description of Outstanding Warrants”). Such Warrants and Warrant Shares were registered under our Registration Statement on Form S-3 (File No. 333-187893), as amended on May 13, 2013 and initially declared effective by the Securities and Exchange Commission (the “SEC”) on May 15, 2013 (the “Prior Registration Statement”).
We may authorizeor through one or more free writing prospectusesunderwriters, dealers or agents, or directly to be provided to you in connection with these offerings. Any prospectus supplements and/investors, on a continuous or related free writing prospectuses may add, update or change information contained in this prospectus. You should carefully read this prospectus, any applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying anydelayed basis. See “Plan of the securities being offered.
Distribution.”
$1.02 per share.
This prospectus may not be used to consummate a sale of any securities unless accompanied by the applicable prospectus supplement.
The securities may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
herein.
2024.
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You should rely only on the information other than that we have providedcontained or incorporated by reference in this prospectus or in any applicable prospectus supplement and any relatedor free writing prospectus thatprepared by or on behalf of us or to which we may authorize to be provided tohave referred you. We have not authorized anyonetake no responsibility for, and can provide no assurance as to provide you with different information. No dealer, salesperson orthe reliability of, any other person is authorized toinformation that others may give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, and only under circumstances and in jurisdictions where it is lawful to do so.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is madedeemed to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibitsin this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the registrationextent that a statement of whichcontained in a prospectus supplement or in any other subsequently filed document that is also incorporated or deemed to be incorporated by reference in this prospectus ismodifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part and you may obtain copies of those documents as described below under the heading “Where You Can Find Additional Information.this prospectus. See “Information Incorporated By Reference.”
With respect to calculation of product market volumes:
We have converted these market sizes into volumes of isobutanol as follows:
Conversion into gallons for the fuels markets is based upon fuel densities identified by Air BP Ltd. and the American Petroleum Institute.
Gevo, Inc. is a renewable chemicals and next generation biofuels company. We have developed proprietary technology that uses a combination of synthetic biology, metabolic engineering, chemistry and chemical engineering to focus primarily on the production of isobutanol, any applicable prospectus supplement, as well as related products fromother information in this prospectus and any applicable prospectus supplement, before purchasing any of our securities. Each of the risks described in these sections and documents could materially and adversely affect our business, financial condition, results of operations and prospects, and could result in a loss of your investment. Additional risks and uncertainties not known to us or that we deem immaterial may also impair our business, financial condition, results of operations and prospects.
In order to producemarketplace and sell isobutanol made from renewable sources, we have developed the Gevo Integrated Fermentation Technology® (“GIFT®”), an integrated technology platformcustomers for the efficientSAF and other related products. We also are engaged as a developer and enabler/licensor for large scale commercial production, and separation of isobutanol. GIFT® consists of two components, proprietary biocatalysts which convert sugars derived from multiple renewable feedstocks into isobutanol through fermentation, and a proprietary separation unit which is designed to continuously separate isobutanol from water during the fermentation process. We developed our technology platformwe expect to be compatible with the existing approximately 25 billion gallons per yeara co-investor on certain projects. our business model is that of global operating ethanol production capacity, as estimated by the RFA.
GIFT® is designed to permit (i) the retrofita developer of existing ethanol capacity to produce isobutanol, ethanol or both products simultaneously or (ii) the additionprojects, a licensor, process technology developer, and operator of renewable isobutanol or ethanol production capabilities to a facility’s existing ethanol production by adding additional fermentation capacity side-by-side with the facility’s existing ethanol fermentation capacity (collectively referred to as “Retrofit”). Having the flexibility to switch between the production of isobutanol and ethanol, or produce both products simultaneously, should allow us to optimize asset utilization and cash flows at a facility by taking advantage of fluctuations in market conditions. GIFT® is also designed to allow relatively low capital expenditure Retrofits of existing ethanol facilities, enabling a relatively rapid route to isobutanol production from the fermentation of renewable feedstocks. We believe that our production route will be cost-efficient, will enable relatively rapid deployment of our technology platform and allow our isobutanol and related renewable products to be economically competitive with many of the petroleum-based products usedcertain assets in the chemicals and fuels markets today.
future.
prospectus or any applicable prospectus supplement.
Investing in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors” containedindicated in the applicable prospectus supplement, and any related free writing prospectus, and under similar headings in the other documents, including our most recent annual report onForm 10-K, and any subsequent quarterly reports onForm 10-Q and current reports onForm 8-K incorporated herein by reference or filed by us after the date of this prospectus, that are incorporated by reference into this prospectus. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations and financial condition.
CAUTIONARY STATEMENT REGARDINGFORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, levels of activity, performance or achievements to differ materially from those expressed or implied by the forward-looking statements. Forward-looking statements may include, but are not limited to, statements relating to the achievement of advances in our technology platform, the success of our Retrofit production model, the availability of suitable and cost-competitive feedstocks, our ability to gain market acceptance for our products, the expected cost-competitiveness and relative performance attributes of our isobutanol and the products derived from it, additional competition, changes in economic conditions, the future price and volatility of petroleum and products derived from petroleum and statements regarding our intended uses of the proceeds of the securities offered hereby. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential” or “continue,” the negative of such terms or other comparable terminology.
Forward-looking statements reflect our current views about future events, are based on assumptions, and are subject to known and unknown risks and uncertainties. Many important factors could cause actual results, performance or achievements to differ materially from the results, performance or achievements expressed in or implied by our forward-looking statements, including the factors listed below. Many of the factors that will determine future results, performance or achievements are beyond our ability to control or predict. The following are important factors, among others, that could cause actual results, performance or achievements to differ materially from the results, performance or achievements reflected in our forward-looking statements:
The forward-looking statements contained herein reflect our views and assumptions only as of the date such forward-looking statements are made. You should not place undue reliance on forward-looking statements. Except as required by law, we assume no responsibility for updating any forward-looking statements nor do we intend to do so. Our actual results, performance or achievements could differ materiallyuse the net proceeds from the results expressed in, or impliedsale of any securities offered by these forward-looking statements. The risks included in this section are not exhaustive. Additional factors that could cause actual results to differ materially from those described in the forward-looking statements are set forth in under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and in our most recent annual report on Form 10-K and any subsequently filed quarterly reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC. You should carefully read both this prospectus, the applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Where You Can Find Additional Information,” completely and with the understanding that our actual future results may be materially different from what we expect.
Unallocated Securities
With respect to the unallocated securities to be offeredus under this prospectus wefor general corporate purposes, which may offer sharesinclude, among others, repayment or refinancing of debt, acquisitions, working capital, capital expenditures, and repurchases or redemptions of securities. We will retain broad discretion over the allocation of net proceeds from the sale of any securities offered by us.
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add to or update the information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
We may sell such unallocated securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters, we will include in the applicable prospectus supplement:
Common Stock. We may issue shares of our common stock from time to time. The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Subject to preferences that may be applicable to any outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably only those dividends as may be declared by our board of directors out of legally available funds. Upon our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock.
Preferred Stock. We may issue shares of our preferred stock from time to time, in one or more series. Under our amended and restated certificate of incorporation, as amended, our boardsecond amended and restated bylaws, and the applicable provisions of directors has the authority, without further action by stockholders, to designate up to 10,000,000 sharesGeneral Corporation Law of preferred stock in one or more seriesthe State of Delaware (“DGCL”). This summary is not complete. You should read our amended and to fix the rights, preferences, privileges, qualificationsrestated certificate of incorporation and restrictions granted to or imposed upon the preferred stock, including dividend rights, conversion rights, voting rights, rightssecond amended and terms of redemption, liquidation preferences and sinking fund terms, any or allrestated bylaws, each of which may be greater than the rights of our common stock.
If we sell any series of preferred stock under this prospectus, we will fix the designations, powers, preferences and rights of such series of preferred stock, as well as the qualifications, limitations or restrictions thereon, in the certificate of designation relating to that series. We will fileis filed as an exhibit to the registration statement of which this prospectus isforms a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities. We may issue debt securities from time to time, in one or more series, as either senior secured, senior unsecured or subordinated debt or as senior secured, senior unsecured or subordinated convertible debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or our other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
The debt securities will be issued under one or more indentures, which are contracts between us and a national banking association or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. Forms of indentures have been filed as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Warrants. We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attachedprovisions that are important to or separate from these securities. In this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered.
We will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.
Units. We may issue, in one or more series, units consisting of common stock, preferred stock, debt securities and/or warrants for the purchase of common stock, preferred stock and/or debt securities in any combination. In this prospectus, we have summarized certain general features of the units. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of units being offered, as well as the complete unit agreement, if any, that contains the terms of the units. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement, if any, and any supplemental agreements that describe the terms of the series of units we are offering before the issuance of the related series of units.
We may evidence each series of units by unit certificates. Units may also be issued under a unit agreement that we enter into with a unit agent. We will indicate the name and address of the unit agent, if applicable, in the prospectus supplement relating to the particular series of units being offered.
Warrant Shares
This prospectus also relates to the issuance of the Warrant Shares, which were previously registered under the Prior Registration Statement. The material terms of the Warrants are summarized herein, which summaries are qualified in their entirety by reference to the forms of warrants and warrant agreements incorporated by reference as exhibits to the registration statement of which this prospectus is a part. To the extent that the terms of the offering and issuance of the Warrant Shares materially differs from those terms disclosed in this prospectus, we may provide you with a prospectus supplement that will contain specific information about the terms of such offering.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY THE APPLICABLE PROSPECTUS SUPPLEMENT.
RATIO OF EARNINGS TO FIXED CHARGES
The following summary is qualified by the more detailed information appearing in the computation table found in Exhibit 12.1 to the registration statement of which this prospectus is part and the historical financial statements, including the notes to those financial statements, incorporated by reference in this prospectus.
Our earnings are inadequate to cover fixed charges. The following table sets forth the dollar amount of the coverage deficiency for all periods (in thousands):
Three Months Ended | Year Ended | |||||||||||||||||||||||
3/31/2016 | 12/31/2015 | 12/31/2014 | 12/31/2013 | 12/31/2012 | 12/31/2011 | |||||||||||||||||||
Ratio of Earnings to Fixed Charges | — | — | — | — | — | — | ||||||||||||||||||
Deficiency of Earnings Available to Cover Fixed Charges | $(3,605 | ) | $ | (36,194 | ) | $ | (41,145 | ) | $ | (67,006 | ) | $ | (62,044 | ) | $ | (48,511 | ) |
Except as described in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of the securities offered hereby to improve the production of isobutanol and related products at our existing facility, acquire access to additional ethanol facilities through direct acquisition, tolling arrangements or joint ventures and to Retrofit those facilities to produce isobutanol and related products. A portion of the net proceeds from this offering may also be used for general corporate purposes, including, among other things, working capital requirements and potential repayment of indebtedness that may be outstanding at the time of any offering under this prospectus. Pending these uses, we expect to invest the net proceeds in demand deposit accounts or short-term, investment-grade securities.
you.
Our common stock is listed on the NASDAQ Capital Market under the symbol “GEVO”.
of Our Certificate of Incorporation, Bylaws and Delaware Law
us.
removal
timely, they must be provided to us not earlier than the close of business on the 120th day prior to the one-year anniversary of the preceding year’s annual meeting and not later than the close of business on the 90th day prior to the one-year anniversary of the preceding year’s annual meeting. For such notices to be timely in the event the annual meeting is advanced more than 30 days prior to or delayed by more than 70 days after the one-year anniversary of the preceding year’s annual meeting, notice must be provided to us not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or, if later, the 10th day following the day on which public announcement of the date of such meeting is first made.
exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
securities that will be deposited with, or on behalf of, The Depository Trust Company (“DTC”) or another depositary named by us and identified in a prospectus supplement with respect to that series. See the section entitled “Legal Ownership of Securities” for a further description of the terms relating to any book-entry securities.
We will file as exhibitsrelating to the registration statementparticular issue of which this prospectus is a part, orwarrants. The warrant agent will incorporate by reference from reports that we fileact solely as our agent in connection with the SEC, the formwarrants and will not assume any obligation or relationship of warrant agreement, including a formagency or trust for or with any holders of warrant certificate, that describeswarrants or beneficial owners of warrants. The summary of the terms of the particular series of warrants we are offering before the issuance of the related series of warrants. The following summaries of materialcontained in this prospectus is not complete and is subject to, and is qualified in its entirety to, all provisions of the warrants andapplicable warrant agreement.
General
We will describe in the applicable prospectus supplement the terms of the series ofand information relating to such warrants, being offered, including:
Unless we otherwise indicatepurchase contracts that differ from those described above. The description in the applicable prospectus supplement before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the specified time on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants tonecessarily be exercised together with specified information,complete and paying the required amount to the warrant agent or the Company, as applicable, in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent upon exercise.
Upon receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
We may issue, in one more series, units consisting of common stock, preferred stock, debt securities and/or warrants for the purchase of common stock, preferred stock and/or debt securities in any combination. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement, if any, that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in theirits entirety by reference to all the provisionspurchase contracts, and, if applicable, collateral arrangements and depositary arrangements, relating to the purchase contracts.
General
U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued if any, may provide that the securities included in the unit may not be held or transferred separately at any time, or at any time before a specified date.
We will describe in the applicable prospectus supplementdate or other specific circumstances occur. The summary of the terms of the seriesunits contained in this prospectus is not complete and is subject to, and is qualified in its entirety by, all provisions of the applicable unit agreements.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent, if any, will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement, if any, or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent, if any, or the holder of any other unit, enforce by appropriate legal action its rights as a holder under any security included in the unit.
Title
We, and any unit agent and any of their agents, may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary. See the section entitled “Legal Ownership of Securities” below.
In December 2013, we issued warrants to purchase 1,420,250 shares of our common stock (the “2013 Warrants”) in a firm commitment underwritten public offering. The 2013 Warrants were exercisable from the date of the original issuance and will expire on December 16, 2018. The 2013 Warrants contain certain anti-dilution protections, as more fully described below, and have an exercise price of $3.57 as of the date of this prospectus. The offering and sale of the 2013 Warrants, and the shares of common stock underlying the 2013 Warrants, were registered under the Prior Registration Statement.
In August 2014, we issued warrants to purchase 2,000,000 shares of our common stock (the “2014 Warrants”) in a firm commitment underwritten public offering. The 2014 Warrants were exercisable from the date of the original issuance and will expire on August 5, 2019. The 2014 Warrants contain certain anti-dilution protections, as more fully described below, and have an exercise price of $2.51 as of the date of this prospectus. The offering and sale of the 2014 Warrants, and the shares of common stock underlying the 2014 Warrants, were registered under the Prior Registration Statement.
In February 2015, we issued Series A warrants to purchase 2,216,667 shares of our common stock (the “Series A Warrants”) in a firm commitment underwritten public offering. The Series A Warrants were exercisable from the date of the original issuance and will expire on February 3, 2020. The Series A Warrants contain certain anti-dilution protections, as more fully described below, and have an exercise price of $0.30 as of the date of this prospectus. The offering and sale of the Series A Warrants, and the shares of common stock underlying the Series A Warrants, were registered under the Prior Registration Statement.
In May 2015, we issued Series C warrants to purchase 430,000 shares of our common stock (the “Series C Warrants”) in a firm commitment underwritten public offering. The Series C Warrants were exercisable from the date of the original issuance and will expire on May 19, 2020. The Series C Warrants contain certain anti-dilution protections, as more fully described below, and have an exercise price of $1.84 as of the date of this prospectus. The offering and sale of the Series C Warrants, and the shares of common stock underlying the Series C Warrants, were registered under the Prior Registration Statement.
In December 2015, we issued Series D warrants to purchase 10,050,000 shares of our common stock (the “Series D Warrants”) in a firm commitment underwritten public offering. The Series D Warrants were exercisable beginning on June 11, 2016 and will expire on December 11, 2020. The Series D Warrants have an exercise price of $0.10 as of the date of this prospectus and the holders of Series D Warrants are not entitled to any further anti-dilution adjustments. The offering and sale of the Series D Warrants, and the shares of common stock underlying the Series D Warrants, were registered under the Prior Registration Statement.
In April 2016, we issued Series F warrants to purchase 10,292,858 shares of our common stock (the “Series F Warrants”) and Series H Warrants to purchase 20,585,716 shares of our common stock (the “Series H Warrants” and, together with the 2013 Warrants, the 2014 Warrants, the Series A Warrants, the Series C Warrants, the Series D Warrants and the Series F Warrants, the “Warrants”) in a firm commitment underwritten public offering. The Series F Warrants will be exercisable beginning on October 1, 2016 and will expire on April 1, 2021. The Series F Warrants contain certain anti-dilution protections, as more fully described below, and have an exercise price of $0.30 as of the date of this prospectus. The Series H Warrants were exercisable from the date of the original issuance, will expire on October 1, 2016 and have an exercise price of $0.75 per share as of the date of this prospectus. The offering and sale of the Series F Warrants and the Series H Warrants, and the shares of common stock underlying the Series F Warrants and the Series H Warrants, were registered under the Prior Registration Statement.
The Company has the right at any time during the term of the Series D Warrants, Series F Warrants or Series H Warrants to reduce the then-existing exercise price of the Series D Warrants, Series F Warrants or Series H Warrants, respectively, to any amount and for any period of time deemed appropriate by our board of directors.
As of the date of this prospectus, the following number of each series of Warrants remain unexercised and outstanding:
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Exercise Mechanics
The Warrants may be exercised by delivering to the Company and/or the warrant agent, as applicable, a written notice of election to exercise, appropriately completed, duly signed and delivered, and delivering to the Company cash payment of the exercise price, if applicable. Upon delivery of the written notice of election to exercise, appropriately completed and duly signed, and cash payment of the exercise price, if applicable, on and subject to the terms and conditions of the Warrant or warrant agreement governing such series of Warrants, as applicable, we will deliver or cause to be delivered, to or upon the written order of such holder, the number of whole shares of common stock to which the holder is entitled, which shares may be delivered in book-entry form. No fractional shares will be issued upon exercise of the Warrants. If a Warrant is exercised for fewer than all of the shares of common stock for which such warrant may be exercised, then upon request of the holder and surrender of such Warrant, we may issue a new Warrant or warrant certificate exercisable for the remaining number of shares of common stock.
If, and only if, a registration statement relating to the issuance of the Warrant Shares underlying any series of the Warrants is not then effective or available, a holder of such series of Warrants may exercise such Warrants on a cashless basis, where the holder receives the net value of such Warrants in shares of common stock. However, if an effective registration statement is available for the issuance of the shares underlying a series of Warrants, a holder of such series of Warrants may only exercise such Warrants through a cash exercise. Shares issued pursuant to a cashless exercise would be issued pursuant to the exemption from registration provided by Section 3(a)(9) of the Securities Act, and thus the shares of common stock issued upon such cashless exercise would take on the characteristics of the Warrants being exercised, including, for purposes of Rule 144(d) promulgated under the Securities Act, a holding period beginning from the original issuance date of such Warrants.
If we fail to timely deliver shares of common stock pursuant to any exercise of any Series D Warrant, Series F Warrant or Series H Warrant, and such exercising holder elects to purchase shares of common stock (in an open market transaction or otherwise) to deliver in satisfaction of a sale by such holder of all or a portion of the shares of common stock for which such Warrant was exercised, then we will be required to deliver, at the holder’s election, either (i) an amount in cash equal to the full purchase price paid by the holder to acquire such alternative shares or (ii) (A) the shares of common stock for which the Series D Warrant, Series F Warrant or Series H Warrant, as applicable, was exercised and (B) an amount in cash equal to the excess (if any) by which the price paid for the alternative shares exceeds the lowest closing sale price of our common stock during the period beginning on the exercise date and ending on the date such payment is delivered. Notwithstanding the foregoing, if we are prohibited by restrictions contained in any of our credit agreements from making any payments described above in cash, we may instead satisfy any such payment obligation by delivering to the holder a number of shares of common stock equal to the cash payment amount divided by 90% of the last volume weighted average price of our common stock on the date of such payment.
Fundamental or Extraordinary Transactions
If, at any time while the Warrants are outstanding, we directly or indirectly, in one or more related transactions, enter into a “fundamental transaction” or “extraordinary transaction”, as described in the applicable Warrants or warrant agreements and generally including any merger with or into another entity, sale of all or substantially all of our assets, tender offer or exchange offer, or reclassification of our common stock, then each holder shall become entitled to receive the same amount and kind of securities, cash or property as such holder would have been entitled to receive upon the occurrence of such fundamental or extraordinary transaction if the holder had been, immediately prior to such fundamental or extraordinary transaction, the holder of the number of shares of common stock then issuable upon exercise of such holder’s Warrants. Any successor to us, surviving entity or the corporation purchasing or otherwise acquiring such assets shall assume the obligation to deliver to the holder such alternate consideration, and the other obligations, under the Warrants.
Additionally, in the event of an extraordinary transaction in which the 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants are assumed by a company that is not a publicly traded company, we or any successor entity will pay at the option of any holder of such Warrants, exercisable at any time concurrently with or within 30 days after the consummation of the extraordinary transaction, an amount of cash equal to the value of such Warrants as determined in accordance with the Black Scholes option pricing model and the terms of such Warrants.
In the event of a fundamental transaction, we or the successor entity will, at the option of any holder of Series D Warrants, Series F Warrants or Series H Warrants, exercisable prior to the date that is 30 days after the public announcement of the consummation of the fundamental transaction, purchase the unexercised portion of such Warrants for an amount of cash equal to the value of such Warrants as determined in accordance with the Black Scholes option pricing model and the terms of such Warrants.
Anti-Dilution Adjustments
The exercise price and the number and type of securities purchasable upon exercise of the Warrants are subject to adjustment upon certain corporate events, including certain combinations, consolidations, liquidations, mergers, recapitalizations, reclassifications, reorganizations, stock dividends and stock splits, a sale of all or substantially all of our assets and certain other events.
The 2013 Warrants, 2014 Warrants and Series C Warrants contain broad-based weighted average anti-dilution protection upon the issuance of any common stock, securities convertible into common stock or certain other issuances at a price below the then-existing exercise price of such Warrants, with certain exceptions; provided, however, that in no event will the exercise price of the 2013 Warrants, 2014 Warrants or Series C Warrants be less than $0.10 per share.
The Series A Warrants and Series F Warrants contain full ratchet anti-dilution protection upon the issuance of any common stock, securities convertible into common stock or certain other issuances at a price below the then-existing exercise price of the Series A Warrants and/or Series F Warrants, as applicable, with certain exceptions; provided, however, that in no event shall the exercise price of the Series F Warrants be less than $0.10 per share (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events).
The terms of the Warrants, including the anti-dilution protections described above, may make it difficult for us to raise additional capital at prevailing market terms in the future.
Rights as a Stockholder
Except as set forth in the respective Warrants, the Warrants do not confer upon holders any voting or other rights as stockholders of the Company.
If, at any time while the Series D Warrants, Series F Warrants or Series H Warrants are outstanding, we declare or make any dividend or other distribution of our assets to holders of shares of our common stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) or we grant, issue or sell any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of common stock (in each case, “Distributed Property”), then each holder of a Series D Warrant, Series F Warrant or Series H Warrant shall receive, with respect to the shares of common stock issuable upon exercise of such Series D Warrant, Series F Warrant or Series H Warrant, the Distributed Property that such holder would have been entitled to receive had the holder been the record holder of such number of shares of common stock issuable upon exercise of the Warrant immediately prior to the record date for such Distributed Property.
Ownership Limitation
Any exercise notice with respect to 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants delivered by a holder thereof will be deemed automatically not to have been so delivered by such holder to the extent, but only to the extent, that delivery of shares of our common stock or any other security otherwise deliverable upon such exercise
would result in such holder having a “beneficial ownership,” as determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder (“Beneficial Ownership”), of our common stock or any other class of registered equity security (a “Class”) in excess of 19.999% of the number of outstanding shares of our common stock or such Class (the “19.999% Ownership Limitation”). Any purported delivery to any holder shall be void and have no effect to the extent, but only to the extent, that after such delivery, such holder would have Beneficial Ownership of our common stock or any such Class in excess of the 19.999% Ownership Limitation.
Notwithstanding the foregoing, during any period of time in which the Beneficial Ownership of our common stock by any holder of 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants is less than 10%, any exercise notice with respect to 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants delivered by such a holder will be deemed automatically not to have been so delivered by such holder to the extent, but only to the extent, that delivery of shares of our common stock or any other security otherwise deliverable upon such exercise would result in such holder having a Beneficial Ownership of our common stock or any other Class in excess of 9.999% of the number of outstanding shares of our common stock or such Class (the “9.999% Ownership Limitation”). Any purported delivery to any such holder shall be void and have no effect to the extent, but only to the extent, that after such delivery, such holder would have Beneficial Ownership of our common stock or any such Class in excess of the 9.999% Ownership Limitation.
Notwithstanding the foregoing, during any period of time in which the Beneficial Ownership of our common stock by any holder of 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants is less than 5%, any exercise notice with respect to 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants delivered by such a holder will be deemed automatically not to have been so delivered by such holder to the extent, but only to the extent, that delivery of shares of our common stock or any other security otherwise deliverable upon such exercise would result in such holder having a Beneficial Ownership of our common stock in excess of 4.999% of the number of outstanding shares of our common stock or such Class (the “4.999% Ownership Limitation”). Any purported delivery to any such holder whose Beneficial Ownership of our common stock is less than 5% shall be void and have no effect to the extent, but only to the extent, that after such delivery, such holder would have Beneficial Ownership of our common stock or any such Class in excess of the 4.999% Ownership Limitation.
By written notice to us, any holder of 2013 Warrants, 2014 Warrants, Series A Warrants or Series C Warrants may from time to time increase or decrease either or both of the 9.999% Ownership Limitation or the 4.999% Ownership Limitation to any other percentage not in excess of the 19.999% Ownership Limitation; provided that any such increase will not be effective until the 61st day after such notice is delivered to us.
Any exercise notice with respect to Series D Warrants, Series F Warrants or Series H Warrants delivered by a holder thereof will be deemed automatically not to have been so delivered by such holder to the extent, but only to the extent, that delivery of shares of our common stock or any other security otherwise deliverable upon such exercise would result in such holder having Beneficial Ownership in excess of the 4.999% Ownership Limitation. Any purported delivery to any holder shall be void and have no effect to the extent, but only to the extent, that after such delivery, such holder would have Beneficial Ownership of our common stock or any such Class in excess of the 4.999% Ownership Limitation.
By written notice to us, any holder of Series D Warrants, Series F Warrants or Series H Warrants may increase or decrease this beneficial ownership limitation to any other percentage not in excess of 9.99%; provided that any such increase will not be effective until the 61st day after such notice is delivered to us.
For purposes of calculating Beneficial Ownership for each of the immediately six preceding paragraphs, the aggregate number of shares of our common stock beneficially owned by a holder will include the number of shares of our common stock issuable upon exercise of the Warrants with respect to which the determination of such sentence is being made, but shall exclude the number of shares of our common stock which are issuable upon (i) exercise of the remaining, unexercised Warrants beneficially owned by such holder, and (ii) exercise or conversion of the unexercised or unconverted portion of any of our other securities beneficially owned by such holder (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein.
These ownership limitations will be construed, corrected and implemented in a manner so as to effectuate the intended beneficial ownership limitations herein contained and the shares of our common stock underlying the Warrants in excess of the 19.999% Ownership Limitation, 9.999% Ownership Limitation or the 4.999% Ownership Limitation will not be deemed to be beneficially owned by a holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act.
CONTENTSLEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the legal holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the legal holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a legal holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
Unallocated Securities
A
Only underwriters named in the prospectus supplement applicable to such offering will be underwriters of the securities offered by such prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price, and any discounts or concessions allowed or reallowed or paid to dealers, in a prospectus supplement.
Wesecurities.
Weappointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
We may provideany bidding or auction process, if used.
All securities we may offer, other than
Any underwritersuch person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock.
originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may causeotherwise affect the price of the securities or any other securities the prices of which may be used to be higher than it would otherwise be. If commenced,determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may discontinuebid for, and purchase, the securities or any such activities at any time.
Any underwriters that are qualified market makers on the NASDAQ Capital Market may engage in passive market making transactionsother securities in the common stock on the NASDAQ Capital Marketopen market. Finally, in accordance with Regulation M under the Exchange Act, during the business day prior to the pricingany offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering beforeif the commencementsyndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market makingthese activities may stabilize or maintain the market price of the securities at a level above that which might otherwise prevailindependent market levels. Any such underwriters are not required to engage in the open marketthese activities and if commenced, may be discontinuedend any of these activities at any time.
In compliance with guidelines of
Warrant Shares
We will sellsupplement indicates otherwise, the Warrant Shares covered by this prospectus from time to time only to the holders of the applicable Warrants upon exercise of such Warrants in accordance with the terms thereof.
The validity of the securities being offered by this prospectus will be passed upon for us by Paul HastingsPerkins Coie LLP, San Diego, California.
The consolidated financial statements for the years ended December 31, 2014 and 2013 (before the retrospective adjustments to the consolidated financial statements and financial statement disclosures relating to the reverse stock split) (not separately presented herein) incorporated in this prospectus by reference from the Company’s Annual Report on Form 10-K have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report (which report expresses an unqualified opinion and includes explanatory paragraphs referring to the Company’s going concern uncertainty and development activities and the reverse stock split), which is incorporated herein by reference. Those retrospective adjustments relating to the reverse stock split were audited by other auditors. Such 2013 and 2014 consolidated financial statements have been so incorporated in reliance upon the report of Deloitte & Touche LLP given upon their authority as experts in accounting and auditing.
In the first quarter of 2016, the Company adopted ASU 2015-03,Interest—Imputation of Interest (Subtopic 835-30).This ASUrequires companies to present, in the balance sheet, debt issuance costs as a direct deduction from the carrying amount of their debt, consistent with debt discounts. The retrospective impact on the Company’s balance sheets as of December 31, 2015 and 2014 is immaterial and resulted in a reduction in assets and debt of $0.3 million and $0.5 million, respectively.
Available Information
This prospectus is part of a registration statement that we have filed with the SEC relating to the securities to be offered. This prospectus does not contain all of thewww.gevo.com. The information we have included in the registration statement and the accompanying exhibits and schedules in accordance with the rules and regulations of the SEC, and we refer you to the omitted information. The statements this prospectus makes pertaining to the content of any contract, agreement or other document that is an exhibit to the registration statement necessarily are summaries of their material provisions and do not describe all exceptions and qualifications contained in, those contracts, agreements or documents. You should read those contracts, agreements or documents for information that maycan be important to you. The registration statement, exhibits and schedules are available at the SEC’s Public Reference Room oraccessed through, its Internet website.
Incorporation by Reference
The rules of the SEC allow us to incorporateour website is not incorporated by reference in this prospectus or any prospectus supplement and you should not consider it a part of this prospectus or any accompanying prospectus supplement.
Any information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus or in a later filed document that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.
We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until we file a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold. Informationprior to the termination of the offering under this prospectus and any prospectus supplement (other than information deemed furnished and not filed in such future filings updatesaccordance with SEC rules, including Items 2.02 and supplements7.01 of Form 8-K):
with the SEC on February 24, 2022).
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| SEC Registration Fee | | | | $ | 92,000(1) | | |
| Legal Fees and Expenses | | | | | ** | | |
| Trustee Fees and Expenses | | | | | ** | | |
| Accounting Fees and Expenses | | | | | ** | | |
| Printing Expenses | | | | | ** | | |
| Stock Exchange and Other Listing Fees | | | | | ** | | |
| Miscellaneous | | | | | ** | | |
| Total | | | | $ | ** | | |
SEC Registration Fee | $ | 7,755 | ||
Printing and Engraving Expenses | 25,000 | |||
Legal Fees and Expenses | 50,000 | |||
Accounting Fees and Expenses | 50,000 | |||
Miscellaneous | 25,000 | |||
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Total | $ | 157,755 | ||
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fee in the amount of $55,100 related thereto is applied to the registrant’s total registration fee hereunder.
registrant.
| Exhibit No. | | | Description | | | Form | | | File No. | | | Filing Date | | | Exhibit | |
| 1.1* | | | Form of Underwriting Agreement. | | | | | | | | | | | | | |
| 1.2† | | | At The Market Offering Agreement, dated January 16, 2024, between Gevo, Inc. and H.C. Wainwright & Co., LLC. | | | | | | | | | | | | | |
| 4.1 | | | | | 10-K | | | 001-35073 | | | 02/24/22 | | | 3.1 | | |
| 4.2 | | | | | 8-K | | | 001-35073 | | | 11/24/21 | | | 3.1 | | |
| 4.3 | | | | | S-1 | | | 333-168792 | | | 01/19/11 | | | 4.1 | | |
| 4.4* | | | Specimen Preferred Stock Certificate. | | | | | | | | | | | | | |
| 4.5 | | | | | S-3 | | | 333-226686 | | | 08/08/18 | | | 4.2 | | |
| 4.6 | | | | | S-3 | | | 333-226686 | | | 08/08/18 | | | 4.3 | | |
| 4.7* | | | Form of Senior Note. | | | | | | | | | | | | | |
| 4.8* | | | Form of Subordinated Note. | | | | | | | | | | | | | |
| 4.9* | | | Form of Deposit Agreement. | | | | | | | | | | | | | |
| 4.10* | | | Form of Warrant Agreement. | | | | | | | | | | | | | |
| 4.11* | | | Form of Purchase Contract. | | | | | | | | | | | | | |
| 4.12* | | | Form of Unit Agreement. | | | | | | | | | | | | | |
| 5.1† | | | | | | | | | | | | | | | | |
| 5.2† | | | | | | | | | | | | | | | | |
| 23.1† | | | | | | | | | | | | | | | | |
| 23.2† | | | | | | | | | | | | | | | | |
| 23.3† | | | | | | | | | | | | | | | | |
| 24.1† | | | | | | | | | | | | | | | | |
| 25.1# | | | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, with respect to the Indentures. | | | | | | | | | | | | | |
| 107† | | | | | | | | | | | | | | | |
II-1
Incorporated by Reference | ||||||||||||
Exhibit | Exhibit Description | Form | Filing Date/ Date | Exhibit | Filed- Furnished Herewith | |||||||
1.1 | Form of Underwriting Agreement.# | |||||||||||
4.1 | Amended and Restated Certificate of Incorporation of Gevo, Inc. | 10-K | March 29, 2011 | 3.1 | ||||||||
4.2 | Amended and Restated Bylaws of Gevo, Inc. | 10-K | March 29, 2011 | 3.2 | ||||||||
4.3 | Form of Gevo, Inc. Common Stock Certificate. | S-1 | January 19, 2011 | 4.1 | ||||||||
4.4 | Common Stock Unit Warrant Agreement | 8-K | December 16, 2013 | 4.1 | ||||||||
4.5 | Common Stock Unit Warrant Agreement | 8-K | August 5, 2014 | 4.1 | ||||||||
4.6 | 2015 Common Stock Unit Series A Warrant Agreement | 8-K | February 4, 2015 | 4.1 | ||||||||
4.7 | 2015 Common Stock Unit Series C | 8-K | May 20, 2015 | 4.1 | ||||||||
4.8 | Form of Series D Warrant | 8-K | December 15, 2015 | 4.1 | ||||||||
4.9 | Form of Series F Warrant | 8-K | April 5, 2016 | 4.1 | ||||||||
4.10 | Form of Series H Warrant | 8-K | April 5, 2016 | 4.3 | ||||||||
4.11 | Form of Senior Debt Indenture | S-3 | May 13, 2016 | 4.4 | ||||||||
4.12 | Form of Subordinated Debt Indenture | S-3 | May 13, 2016 | 4.5 | ||||||||
4.13 | Form of Senior Note# | |||||||||||
4.14 | Form of Subordinated Note# | |||||||||||
4.15 | Form of Specimen Preferred Stock Certificate# | |||||||||||
4.16 | Form of Certificate of Designation# | |||||||||||
4.17 | Form of Common Stock Warrant Agreement and Warrant Certificate# | |||||||||||
4.18 | Form of Preferred Stock Warrant Agreement and Warrant Certificate# | |||||||||||
4.19 | Form of Debt Securities Warrant Agreement and Warrant Certificate# | |||||||||||
4.20 | Form of Unit Agreement# | |||||||||||
5.1 | Opinion of Paul Hastings LLP | * | ||||||||||
12.1 | Statement of Computation of Ratio of Earnings to Fixed Charges | S-3 | May 13, 2016 | 12.1 | ||||||||
23.1 | Consent of Paul Hastings LLP (included in Exhibit 5.1) | * | ||||||||||
23.2 | Consent of Independent Registered Public Accounting Firm, Grant Thornton LLP | * | ||||||||||
23.3 | Consent of Independent Registered Public Accounting Firm, Deloitte & Touche LLP | * | ||||||||||
24.1 | Power of Attorney (included on signature page of original filing) | S-3 | May 13, 2016 | |||||||||
25.1 | Statement of Eligibility of Trustee under the Senior Debt Indenture† | |||||||||||
25.2 | Statement of Eligibility of Trustee under the Subordinated Debt Indenture† |
II-2
Trust Indenture Act of 1939, as amended.
(A) Each
(B) Each
II-3
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrantregistrants will be a sellersellers to the purchaser and will be considered to offer or sell such securities to such purchaser:
(6) That,
(7) That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(8) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
(9) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
| | | | GEVO, INC. | | ||||||
| | ||||||||||
| | By: | | | /s/ Patrick R. Gruber | | |||||
| | | | | | | Name: | | | Patrick R. Gruber | |
| | | | | | | Title: | | | Chief Executive Officer
| |
| |||||||||||
|
II-5
| Signature | | | Title | | | Date | |
|
|
| ||||||
/s/ Patrick R. Gruber Patrick R. Gruber, Ph.D. | | | Chief Executive Officer (Principal Executive Officer) and Director | | January 16, 2024 | | ||
/s/ L. Lynn Smull | | | Chief Financial Officer (Principal Financial Officer) | | | January 16, 2024 | | |
| /s/ Alisher Nurmat Alisher Nurmat | | | Vice President, Accounting and Treasurer (Principal | | January 16, 2024 | | |
/s/ William H. Baum William H. Baum | ||||||||
| | |||||||
| Chairperson of the Board of Directors | | January 16, 2024 | | ||||
/s/ Angelo Amorelli Angelo Amorelli | | | Director | | | January 16, 2024 | | |
| /s/ Carol J. Battershell Carol J. Battershell | | | Director | | | January 16, 2024 | |
| /s/ Mary K. Ellet Mary K. Ellet |
| | | | January 16, 2024 | |
| Signature | | | Title | | | Date | |
| /s/ Jaime Guillen Jaime Guillen | | | Director | | | January 16, 2024 | |
| /s/ Gary W. Mize Gary W. Mize | | | Director | | | January 16, 2024 | |
| ||||||||
|
| |||||||
/s/ Andrew J. Marsh Andrew J. Marsh | | |||||||
| Director | |||||||
| |
| ||||||
|
| |||||||
|
| ||
II-6
EXHIBIT INDEX
Incorporated by Reference | ||||||||||||
Exhibit | Exhibit Description | Form | Filing Date/ Date | Exhibit | Filed- Furnished Herewith | |||||||
1.1 | Form of Underwriting Agreement.# | |||||||||||
4.1 | Amended and Restated Certificate of Incorporation of Gevo, Inc. | 10-K | March 29, 2011 | 3.1 | ||||||||
4.2 | Amended and Restated Bylaws of Gevo, Inc. | 10-K | March 29, 2011 | 3.2 | ||||||||
4.3 | Form of Gevo, Inc. Common Stock Certificate. | S-1 | January 19, 2011 | 4.1 | ||||||||
4.4 | Common Stock Unit Warrant Agreement | 8-K | December 16, 2013 | 4.1 | ||||||||
4.5 | Common Stock Unit Warrant Agreement | 8-K | August 5, 2014 | 4.1 | ||||||||
4.6 | 2015 Common Stock Unit Series A Warrant Agreement | 8-K | February 4, 2015 | 4.1 | ||||||||
4.7 | 2015 Common Stock Unit Series C | 8-K | May 20, 2015 | 4.1 | ||||||||
4.8 | Form of Series D Warrant | 8-K | December 15, 2015 | 4.1 | ||||||||
4.9 | Form of Series F Warrant | 8-K | April 5, 2016 | 4.1 | ||||||||
4.10 | Form of Series H Warrant | 8-K | April 5, 2016 | 4.3 | ||||||||
4.11 | Form of Senior Debt Indenture | S-3 | May 13, 2016 | 4.4 | ||||||||
4.12 | Form of Subordinated Debt Indenture | S-3 | May 13, 2016 | 4.5 | ||||||||
4.13 | Form of Senior Note# | |||||||||||
4.14 | Form of Subordinated Note# | |||||||||||
4.15 | Form of Specimen Preferred Stock Certificate# | |||||||||||
4.16 | Form of Certificate of Designation# | |||||||||||
4.17 | Form of Common Stock Warrant Agreement and Warrant Certificate# | |||||||||||
4.18 | Form of Preferred Stock Warrant Agreement and Warrant Certificate# | |||||||||||
4.19 | Form of Debt Securities Warrant Agreement and Warrant Certificate# | |||||||||||
4.20 | Form of Unit Agreement# | |||||||||||
5.1 | Opinion of Paul Hastings LLP | * | ||||||||||
12.1 | Statement of Computation of Ratio of Earnings to Fixed Charges | S-3 | May 13, 2016 | 12.1 | ||||||||
23.1 | Consent of Paul Hastings LLP (included in Exhibit 5.1) | * | ||||||||||
23.2 | Consent of Independent Registered Public Accounting Firm, Grant Thornton LLP | * | ||||||||||
23.3 | Consent of Independent Registered Public Accounting Firm, Deloitte & Touche LLP | * | ||||||||||
24.1 | Power of Attorney (included on signature page of original filing) | S-3 | May 13, 2016 | |||||||||
25.1 | Statement of Eligibility of Trustee under the Senior Debt Indenture† | |||||||||||
25.2 | Statement of Eligibility of Trustee under the Subordinated Debt Indenture† |