SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement, and the documents we file or have
filed
with the SEC that are incorporated herein by reference include “forward-looking
statements” within the meaning of Section 27A of the United States Securities
Act of 1933, as amended, or the Securities Act, and Section 21E of the United
States Securities Exchange Act of 1934, as amended, or the Exchange Act.
These
forward-looking statements involve known and unknown risks, uncertainties
and
other factors, which may cause actual results, performance or achievements
of
our company, the Mt. Hope Project, Liberty Property, and our other projects,
or
industry results, to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements. We use the words “may,” “will,” “believe,” “expect,” “anticipate,”
“intend,” “future,” “plan,” “estimate,” “potential” and other similar
expressions to identify forward-looking statements. These forward-looking
statements are subject to a number of risks, uncertainties and assumptions
that
could cause actual results to differ materially from those in the forward
looking statements. Such risks, uncertainties and assumptions are described
in
the “Risk Factors” section included in any applicable prospectus supplement and
the risk factors and other discussion described in our periodic reports filed
with the SEC, which are incorporated by reference in this prospectus, and
include, among other things:
|
·
|
our
dependence on the success of the Mt. Hope Project;
|
|
·
|
the
ability to obtain all required permits and approvals for the Mt.
Hope
Project and the Liberty Property;
|
|
·
|
issues
related to the management of the Mt. Hope Project;
|
|
·
|
fluctuations
in the market price of, and demand for, molybdenum and other metals;
|
|
·
|
the
estimation and realization of mineral reserves, if
any;
|
|
·
|
the
timing of exploration, development and production activities and
estimated
future production, if any;
|
|
·
|
estimates
related to costs of production, capital, operating and exploration
expenditures;
|
|
·
|
requirements
for additional capital and the possible sources of such
capital;
|
|
·
|
government
regulation of mining operations, environmental conditions and risks,
reclamation and rehabilitation
expenses;
|
|
·
|
title
disputes or claims; and
|
|
·
|
limitations
of insurance coverage.
|
Because
the factors discussed in this prospectus, each prospectus supplement, and/or
documents incorporated by reference could cause actual results or outcomes
to
differ materially from those expressed in any forward-looking statements
made by
us or on our behalf, you should not place undue reliance on any such
forward-looking statements. Further, any forward-looking statement speaks
only
as of the date on which it is made, and we undertake no obligation to update
any
forward-looking statement or statements to reflect events or circumstances
after
the date on which such statement is made or to reflect the occurrence of
unanticipated events. New factors emerge from time to time, and it is not
possible for us to predict which will arise. In addition, we cannot assess
the
impact of each factor on our business or the extent to which any factor,
or
combination of factors, may cause actual results to differ materially from
those
contained in any forward-looking statements. Except as required by law, we
undertake no obligation to publicly revise our forward-looking statements
to
reflect events or circumstances that arise after the date of such statements.
We
qualify all forward-looking statements contained in this prospectus, each
prospectus supplement, and documents incorporated by reference by the foregoing
cautionary statements.
RATIO
OF EARNINGS TO FIXED CHARGES
We
have
incurred $0.0 million in fixed charges in each of the past five fiscal years
and
for the three months ended March 31, 2008. We are currently in the
development stage and have incurred losses totaling $37.7 million, $12.3
million, and $4.5 million, $3.0 million, and $0.1 million in the years ended
December 31, 2007, 2006, 2005, 2004, and 2003, respectively. Until we reach
the
production stage, currently estimated to occur in late 2010, we will continue
to
incur losses. Until we achieve profitability, we will not be able to cover
our fixed charges from earnings.
Unless
otherwise indicated in the prospectus supplement applicable to an offering,
we
intend to use any net proceeds from the sale of our securities to fund the
exploration and development of our properties, our operations, and for other
general corporate purposes, such as working capital, capital expenditures,
investments and acquisitions. Pending use of the net proceeds as described
above, we intend to invest the net proceeds in short-term, interest-bearing,
investment grade securities.
Our
authorized share capital consists of 200,000,000 shares of common stock,
$.001
par value, and 10,000,000 shares of preferred stock, $.001 par value. As
of
April 30, 2008, there were 70,956,595 shares of common stock outstanding
and no
shares of preferred stock issued and outstanding. All outstanding shares
of
common stock are fully paid and non-assessable.
The
following summary of our capital stock is qualified in its entirety by the
description of our common stock contained in our registration statement on
Form
8-A/A filed with the SEC October 10, 2007, including all amendments or reports
filed for the purpose of updating such description, and to our certificate
of
incorporation and bylaws, as amended from time to time, all of which are
incorporated by reference as exhibits into the registration statement of
which
this prospectus is a part. See “Where You Can Find More
Information.”
Common
Stock
All
shares of our common stock are equal with respect to voting, liquidation,
dividend and other rights. Owners of common stock are entitled to one vote
for
each share owned at any meeting of the stockholders. Holders of common
stock are entitled to receive such dividends as may be declared by our board
of
directors out of funds legally available therefor; and upon liquidation,
are
entitled to participate pro
rata
in a
distribution of assets available for such a distribution to stockholders,
subject to the prior claims of holders of any outstanding preferred stock.
Our common stock does not have cumulative voting rights, which means that
the holders of more than 50% of the common stock voting in an election of
directors may elect all of the directors to be elected at any meeting of
stockholders, if they choose to do so. In such event, the holders of the
remaining common stock aggregating less than 50% would not be able to elect
any
directors. As permitted by Delaware law, our Bylaws provide for staggering
the terms of directors by dividing the total number of directors into three
groups. We have not paid cash dividends with respect to our common stock
in the
past and do not anticipate paying any such dividends in the foreseeable future.
None of our outstanding shares of common stock are liable to calls or assessment
by us.
Preferred
Stock
We
may
offer shares of our preferred stock from time to time, in one or more
series. Under our certificate of incorporation, we are authorized to issue
10,000,000 shares preferred stock, par value $0.001 per share. Our preferred
stock is entitled to preference over our common stock with respect to the
distribution of our assets in the event of liquidation, dissolution, or winding
up of the company. Our preferred stock may be issued from time to time and
our
board of directors shall have the right to fix the rights, preferences,
privileges, qualifications and restrictions granted to or imposed upon the
preferred stock. As of April 30, 2008, we do not have any outstanding
shares of preferred stock.
The
issuance of preferred stock could adversely affect the voting power of holders
of common stock and reduce the likelihood that common stockholders will receive
dividend payments and payments upon liquidation. The issuance could have
the effect of decreasing the market price of our common stock. The
issuance of preferred stock also could have the effect of delaying, deterring
or
preventing a change in control of our company.
Our
board
of directors will fix the rights, preferences, privileges, qualifications
and
restrictions of the preferred stock of each series that we sell under this
prospectus and applicable prospectus supplements in the certificate of
designation relating to that series. We will incorporate by reference into
the registration statement of which this prospectus is a part 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. This description of the preferred stock in the certificate of
designation and any applicable prospectus supplement will include:
|
·
|
the
title and stated value;
|
|
·
|
the
number of shares we are offering;
|
|
·
|
the
liquidation preference per share;
|
|
·
|
the
purchase price per share;
|
|
·
|
the
currency for which the shares may be
purchased;
|
|
·
|
the
dividend rate per share, dividend period and payment dates and
method of
calculation for dividends;
|
|
·
|
whether
dividends will be cumulative or non-cumulative and, if cumulative,
the
date from which dividends will
accumulate;
|
|
·
|
our
right, if any, to defer payment of dividends and the maximum length
of any
such deferral period;
|
|
·
|
the
procedures for any auction and remarketing, if
any;
|
|
·
|
the
provisions for a sinking fund, if
any;
|
|
·
|
the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and repurchase
rights;
|
|
·
|
any
listing of the preferred stock on any securities exchange or
market;
|
|
·
|
whether
the preferred stock will be convertible into our common stock or
other
securities of ours, including warrants, and, if applicable, the
conversion
period, the conversion price, or how it will be calculated, and
under what
circumstances it may be adjusted;
|
|
·
|
whether
the preferred stock will be exchangeable into debt securities,
and, if
applicable, the exchange period, the exchange price, or how it
will be
calculated, and under what circumstances it may be
adjusted;
|
|
·
|
voting
rights, if any, of the preferred
stock;
|
|
·
|
preemption
rights, if any;
|
|
·
|
restrictions
on transfer, sale or other assignment, if
any;
|
|
·
|
a
discussion of any material or special United States federal income
tax
considerations applicable to the preferred
stock;
|
|
·
|
the
relative ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our
affairs;
|
|
·
|
any
limitations on issuances of any class or series of preferred stock
ranking
senior to or on a parity with the series of preferred stock being
issued
as to dividend rights and rights if we liquidate, dissolve or wind
up our
affairs; and
|
|
·
|
any
other specific terms, rights, preferences, privileges, qualifications
or
restrictions of the preferred
stock.
|
When
we
issue shares of preferred stock under this prospectus, the shares will be
fully
paid and non-assessable and will not have, or be subject to, any preemptive
or
similar rights.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include
in
any applicable prospectus supplements, summarizes the general terms and
provisions of the debt securities that we may offer under this prospectus.
While the terms we have summarized below will generally apply to any future
debt
securities we may offer under this prospectus, we will describe the particular
terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities we offer under a
prospectus supplement may differ from the terms we describe below.
We
will
issue the senior notes under a senior indenture, which we will enter into
with
the trustee to be named in the senior indenture. We will issue the
subordinated notes under a subordinated indenture, which we will enter into
with
the trustee to be named in the subordinated indenture. If we issue debt
securities, we will file these documents as exhibits to the registration
statement of which this prospectus is a part, or incorporate them by reference
from another report. We use the term “indentures” to refer to both the
senior indenture and the subordinated indenture.
The
following summaries of material provisions of the senior notes, the subordinated
notes and the indentures are subject to, and qualified in their entirety
by
reference to, all the provisions of the indenture applicable to a particular
series of debt securities. We urge you to read the applicable prospectus
supplements related to the debt securities that we sell under this prospectus,
as well as the complete indentures that contain the terms of the debt
securities. Except as we may otherwise indicate, the terms of the senior
and the subordinated indentures are identical.
General
The
indentures may limit the aggregate principal amount of the debt securities
which
we may issue and will provide that we may issue the debt securities from
time to
time in one or more series. The indentures may or may not limit the amount
of
our other indebtedness or the debt securities that we may issue. The particular
terms of each series of debt securities will be described in a prospectus
supplement relating to such series, including any pricing supplement. The
prospectus supplement will set forth:
|
·
|
the
principal amount being offered, and, if a series, the total amount
authorized and the total amount
outstanding;
|
|
·
|
the
price at which we will sell the debt securities;
|
|
·
|
any
limit on the amount that may be
issued;
|
|
·
|
whether
or not we will issue the series of debt securities in global form
and, if
so, the terms and who the depositary will
be;
|
|
·
|
whether
and under what circumstances, if any, we will pay additional amounts
on
any debt securities held by a person who is not a United States
person for
tax purposes, and whether we can redeem the debt securities if
we have to
pay such additional amounts;
|
|
·
|
the
annual interest rate, which may be fixed or variable, or the method
for
determining the rate;
|
|
·
|
the
date interest will begin to accrue, the dates interest will be
payable and
the regular record dates for interest payment dates or the method
for
determining such dates;
|
|
·
|
whether
or not the debt securities will be secured or unsecured, and the
terms of
any secured debt;
|
|
·
|
the
terms of the subordination of any series of subordinated
debt;
|
|
·
|
the
place where payments will be
payable;
|
|
·
|
restrictions
on transfer, sale or other assignment, if
any;
|
|
·
|
our
right, if any, to defer payment of interest and the maximum length
of any
such deferral period;
|
|
·
|
the
date, if any, after which, the conditions upon which, and the price
at
which we may, at our option, redeem the series of debt securities
pursuant
to any optional or provisional redemption provisions, and any other
applicable terms of those redemption
provisions;
|
|
·
|
the
date, if any, on which, and the price at which we are obligated,
pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt
securities and the currency or currency unit in which the debt
securities
are payable;
|
|
|
any
additional covenants applicable to the debt securities;
|
|
·
|
any
additional events of default applicable to the debt securities;
|
|
·
|
whether
the indenture will require us to maintain any interest coverage,
fixed
charge, cash flow-based, asset-based or other financial
ratios;
|
|
·
|
a
discussion of any material or special United States federal income
tax
considerations applicable to the debt
securities;
|
|
·
|
information
describing any book-entry features;
|
|
·
|
provisions
for a sinking fund purchase or other analogous fund, if
any;
|
|
·
|
whether
the debt securities are to be offered at a price such that they
will be
deemed to be offered at an “original issue discount” as defined in
paragraph (a) of Section 1273 of the Internal Revenue
Code;
|
|
·
|
the
procedures for any auction and remarketing, if
any;
|
|
·
|
the
denominations in which we will issue the series of debt securities,
if
other than denominations of $1,000 and any integral multiple
thereof;
|
|
·
|
if
other than dollars, the currency in which the series of debt securities
will be denominated; and
|
|
·
|
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, including any events of default
that
are in addition to those described in this prospectus or any covenants
provided with respect to the debt securities that are in addition
to those
described above, and any terms which may be required by us or advisable
under applicable laws or regulations or advisable in connection
with the
marketing of the debt securities.
|
Conversion
or Exchange Rights
We
will
set forth in the prospectus supplement the terms on which a series of debt
securities may be convertible into or exchangeable for common stock or other
securities of ours or a third party, including the conversion or exchange
rate,
as applicable, or how it will be calculated, and the applicable conversion
or
exchange period. We will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder or at our option. We
may include provisions pursuant to which the number of our securities or
the
securities of a third party that the holders of the series of debt securities
receive upon conversion or exchange would, under the circumstances described
in
those provisions, be subject to adjustment, or pursuant to which those holders
would, under those circumstances, receive other property upon conversion
or
exchange, for example in the event of our merger or consolidation with another
entity.
Consolidation,
Merger or Sale
Unless
otherwise specified in any applicable prospectus supplement, the indentures
provide that we may not consolidate with or merge into any person or sell
or
convey substantially all of our assets to any person, except that we may
do so
if:
|
·
|
we
are the continuing entity or the successor entity (if other than
us) is
organized and existing under the laws of the United States or the
District
or Columbia, and expressly assumes all of our obligations under
the
indenture; and
|
|
·
|
immediately
after giving effect to such transaction, no event of default has
occurred.
|
Upon
succession, we will be relieved from any further obligations under the
applicable indenture. For purposes of this provision, “substantially all of our
assets” means, at any date, a portion of the non-current assets reflected in our
consolidated balance sheet as of the end of the most recent quarterly period
that represents at least 66 2/3% of the total reported value of such
assets.
Events
of Default Under the Indenture
Unless
otherwise specified in any applicable prospectus supplement, each of the
following will constitute events of default with respect to any series of
debt
securities that we may issue:
|
·
|
if
we fail to pay interest when due and payable and our failure continues
for
30 days;
|
|
·
|
if
we fail to pay the principal or premium, if any, when due and
payable;
|
|
·
|
if
we fail to pay any sinking fund payment when due and payable and
our
failure continues for 30 days;
|
|
·
|
if
we default in the performance of, or breach, any other covenant
or
warranty contained in the debt securities or the indentures, other
than a
covenant specifically relating to another series of debt securities,
and
our failure continues for 90 days after we receive notice from
the trustee
or holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable
series;
|
|
·
|
if
specified events of bankruptcy, insolvency or reorganization occur;
and
|
|
·
|
any
other event of default provided in or pursuant to the applicable
indenture
or prospectus supplement with respect to the debt securities of
that
series.
|
If
an
event of default with respect to debt securities of any series occurs and
is
continuing, the trustee or the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of that series, by notice to us
in
writing, and to the trustee if notice is given by such holders, may declare
the
unpaid principal of, premium, if any, and accrued interest, if any, due and
payable immediately. Under certain circumstances, the holders of a
majority in principal amount of the outstanding debt securities of an affected
series may rescind such a declaration of acceleration of maturity.
Subject
to the terms of the indentures, if an event of default under an indenture
shall
occur and be continuing, the trustee will be under no obligation to exercise
any
of its rights or powers under such indenture at the request or direction
of any
of the holders of the applicable series of debt securities, unless such holders
have offered the trustee reasonable indemnity. The holders of a majority
in principal amount of the outstanding debt securities of any series will
have
the right to direct the time, method and place of conducting any proceeding
for
any remedy available to the trustee, or exercising any trust or power conferred
on the trustee, with respect to the debt securities of that series, provided
that:
|
·
|
the
direction so given by the holder is not in conflict with any law
or the
applicable indenture;
|
|
·
|
the
trustee may take any other action it deems proper which is not
inconsistent with such direction; and
|
|
·
|
subject
to its duties under the Trust Indenture Act of 1939, the trustee
need not
take any action that the trustee determines in good faith would
involve it
in personal liability.
|
A
holder
of the debt securities of any series will only have the right to institute
a
proceeding under the indentures or to appoint a receiver or trustee, or to
seek
other remedies if:
|
·
|
the
holder has given written notice to the trustee of a continuing
event of
default with respect to that
series;
|
|
·
|
the
holders of at least 25% in aggregate principal amount of the outstanding
debt securities of that series have made written request, and such
holders
have offered reasonable indemnity to the trustee to institute the
proceeding as trustee; and
|
|
·
|
the
trustee does not institute the proceeding within 60 days after
the notice,
request, and offer, and does not receive from the holders of a
majority in
aggregate principal amount of the outstanding debt securities of
that
series other conflicting directions within such 60-day period.
|
We
will
periodically file statements with the trustee regarding our compliance with
specified covenants in the indentures.
Modification
of Indenture; Waiver
We
and
the trustee may change an indenture without the consent of any holders with
respect to specific matters, including:
|
·
|
to
fix any ambiguity, defect or inconsistency in the indenture to
the extent
such action does not adversely affect the interests of the holders
of any
series of debt securities in any material
respect;
|
|
·
|
to
comply with the provisions described above under “Consolidation, Merger or
Sale”;
|
|
·
|
to
evidence and provide for the acceptance of appointment by a successor
trustee;
|
|
·
|
to
add to or change any of the provisions of that indenture to facilitate
the
issuance of debt securities in bearer form with or without coupons
or to
provide for uncertificated debt securities and to make all appropriate
changes for such purpose;
|
|
·
|
to
secure or provide for a guaranty of or additional obligors on any
or all
series of debt securities;
|
|
·
|
to
add to, delete from, or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issuance,
authorization and delivery of debt securities or any series, as
set forth
in the indenture;
|
|
·
|
to
provide for the issuance of and establish the form and terms and
conditions of the debt securities of any series as provided under
“General,” to establish the form of any certifications required to be
furnished pursuant to the terms of the indenture or any series
of debt
securities, or to add to the rights of the holders of any series
of debt
securities; or
|
|
·
|
to
add to our covenants such new covenants, restrictions, conditions
or
provisions for the protection of the holders, to make the occurrence,
or
the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of default,
or
to surrender any of our rights or powers under the
indenture.
|
In
addition, under the indentures, the rights of holders of a series of debt
securities may be changed by us and the trustee with the written consent
of the
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series that is affected. However, we and the
trustee may only make the following changes with the consent of each holder
of
any outstanding debt securities affected:
|
·
|
extend
the fixed maturity of any debt securities or any installment of
interest
or premium on any debt securities, or reduce the principal amount
thereof
or reduce the rate of interest or premium payable upon redemption,
or
reduce the amount of principal of an original issue discount debt
security
or any other debt security that would be due and payable upon a
declaration of acceleration of the maturity thereof, or change
the
currency in which the debt securities are payable or impair the
right to
institute suit for the enforcement of any payment after the stated
maturity thereof or the redemption date, if applicable, or adversely
affect any right of the holder of any debt security to require
us to
repurchase that security;
|
|
·
|
reduce
the percentage of debt securities of any series, the consent of
the
holders of which is required for any waiver or supplemental
indenture;
|
|
·
|
modify
the provisions of the indenture relating to the waiver of past
defaults or
the waiver or certain covenants or the provisions described in
this
section, except to increase any percentage set forth in those provisions
or to provide that other provisions of the indenture may not be
modified
without the consent of the holder of each debt security affected
thereby;
or
|
|
·
|
reduce
or postpone any sinking fund
payment.
|
Discharge
Each
indenture will provide that we can elect to be discharged from our obligations
with respect to one or more series of debt securities, except for obligations
to:
|
·
|
register
the transfer or exchange of debt securities of the
series;
|
|
·
|
replace
stolen, lost or mutilated debt securities of the
series;
|
|
·
|
maintain
paying agencies; and
|
|
·
|
hold
monies for payment in trust.
|
In
order
to exercise our rights to be discharged, we must deposit with the trustee
money
or government obligations sufficient to pay all the principal of, any premium,
if any, and interest on, the debt securities of the series on the dates payments
are due.
Form,
Exchange and Transfer
We
will
issue the debt securities of each series only in fully registered form without
coupons and, unless we otherwise specify in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof.
The indenture will provide that we may issue debt securities of a series
in
temporary or permanent global form and as book-entry securities that will
be
deposited with, or on behalf of, The Depository Trust Company, New York,
New
York, known as DTC, or another depositary named by us and identified in a
prospectus supplement with respect to that series. See “Legal Ownership of
Securities” for a further description of the terms relating to any book-entry
securities.
At
the
option of the holder, subject to the terms of the indentures and the limitations
applicable to global securities described in the applicable prospectus
supplement, the holder of the debt securities of any series can exchange
the
debt securities for other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global
securities set forth in the applicable prospectus supplement, holders of
the
debt securities may present the debt securities for exchange or for registration
of transfer, duly endorsed or with the form of transfer endorsed thereon
duly
executed if so required by us or the security registrar, at the office of
the
security registrar or at the office of any transfer agent designated by us
for
this purpose. Unless otherwise provided in the debt securities that the
holder presents for transfer or exchange, we will make no service charge
for any
registration of transfer or exchange, but we may require payment of any taxes
or
other governmental charges.
We
will
name in the applicable prospectus supplement the security registrar, and
any
transfer agent in addition to the security registrar, that we initially
designate for any debt securities. We may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve
a
change in the office through which any transfer agent acts, except that we
will
be required to maintain a transfer agent in each place of payment for the
debt
securities of each series.
If
we
elect to redeem the debt securities of any series, we will not be required
to:
|
·
|
issue,
register the transfer of, or exchange any debt securities of any
series
being redeemed in part during a period beginning at the opening
of
business 15 days before the day of mailing of a notice of redemption
of
any debt securities that may be selected for redemption and ending
at the
close of business on the day of the mailing;
or
|
|
·
|
register
the transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion
of any debt
securities we are redeeming in
part.
|
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of
default
under an indenture, will undertake to perform only those duties as are
specifically set forth in the applicable indenture. Upon an event of
default under an indenture, the trustee must use the same degree of care
as a
prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the trustee is under no obligation to
exercise any of the powers given it by the indentures at the request of any
holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we
otherwise indicate in the applicable prospectus supplement, we will make
payment
of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities,
are registered at the close of business on the regular record date for the
interest.
We
will
pay principal of and any premium and interest on the debt securities of a
particular series at the office of the paying agents designated by us, except
that, unless we otherwise indicate in the applicable prospectus supplement,
we
may make interest payments by check which we will mail to the holder or by
wire
transfer to certain holders. Unless we otherwise indicate in a prospectus
supplement, we will designate the corporate trust office of the trustee as
our
sole paying agent for payments with respect to debt securities of each
series. We will name in the applicable prospectus supplement any other
paying agents that we initially designate for the debt securities of a
particular series. We will maintain a paying agent in each place of
payment for the debt securities of a particular series.
All
money
we pay to a paying agent or the trustee for the payment of the principal
of or
any premium or interest on any debt securities which remains unclaimed at
the
end of two years after such principal, premium or interest has become due
and
payable will be repaid to us, and the holder of the debt security thereafter
may
look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in
accordance with the laws of the State of New York, except to the extent that
the
Trust Indenture Act of 1939 is applicable.
Subordination
of Subordinated Debt Securities
The
subordinated debt securities will be subordinate and junior in priority of
payment to certain of our other indebtedness to the extent described in a
prospectus supplement. The indentures will not limit the amount of
indebtedness which we may incur, including senior indebtedness or subordinated
indebtedness, and will not limit us from issuing any other debt, including
secured debt or unsecured debt.
The
following description, together with the additional information we may include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the warrants that we may offer under this prospectus. While
the
terms we have summarized below will apply generally to any warrants that
we may
offer under this prospectus, we will describe the particular terms of any
series
of warrants in more detail in the applicable prospectus supplement. The terms
of
any warrants offered under a prospectus supplement may differ from the terms
described below. However, no prospectus supplement will fundamentally change
the
terms that are set forth in this prospectus or offer a security that is not
registered and described in this prospectus at the time of its
effectiveness.
We
will
file as exhibits to the registration statement of which this prospectus is
a
part, or will incorporate by reference from another report that we file with
the
SEC, the form of warrant agreement, including a form of warrant certificate,
that describes the terms of the particular series of warrants we are offering
before the issuance of the related series of warrants. The following summaries
of material provisions of the warrants and the warrant agreements are subject
to, and qualified in their entirety by reference to, all the provisions of
the
warrant agreement and warrant certificate applicable to a particular series
of
warrants. We urge you to read the applicable prospectus supplements related
to
the particular series of warrants that we sell under this prospectus, as well as
the complete warrant agreements and warrant certificates that contain the
terms
of the warrants.
General
We
will
describe in the applicable prospectus supplement the terms relating to a
series
of warrants, including:
|
·
|
the
offering price and aggregate number of warrants
offered;
|
|
·
|
the
currency for which the warrants may be
purchased;
|
|
·
|
if
applicable, the designation and terms of the securities with which
the
warrants are issued and the number of warrants issued with each
such
security or each principal amount of such
security;
|
|
·
|
if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
|
|
·
|
in
the case of warrants to purchase debt securities, the principal
amount of
debt securities purchasable upon exercise of one warrant and the
price at
which, and currency in which, this principal amount of debt securities
may
be purchased upon such exercise;
|
|
·
|
in
the case of warrants to purchase common stock or preferred stock,
the
number of shares of common stock or preferred stock, as the case
may be,
purchasable upon the exercise of one warrant and the price at which
these
shares may be purchased upon such
exercise;
|
|
·
|
the
effect of any merger, consolidation, sale or other disposition
of our
business on the warrant agreements and the
warrants;
|
|
·
|
the
terms of any rights to redeem or call the
warrants;
|
|
·
|
any
provisions for changes to or adjustments in the exercise price
or number
of securities issuable upon exercise of the
warrants;
|
|
·
|
the
dates on which the right to exercise the warrants will commence
and
expire;
|
|
·
|
the
manner in which the warrant agreements and warrants may be
modified;
|
|
·
|
federal
income tax consequences of holding or exercising the
warrants;
|
|
·
|
the
terms of the securities issuable upon exercise of the warrants;
and
|
|
·
|
any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
|
Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the securities purchasable upon such exercise,
including:
|
·
|
in
the case of warrants to purchase debt securities, the right to
receive
payments of principal of, or premium, if any, or interest on, the
debt
securities purchasable upon exercise or to enforce covenants in
the
applicable indenture; or
|
|
·
|
in
the case of warrants to purchase common stock or preferred stock,
the
right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if
any.
|
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify
in
the applicable prospectus supplement at the exercise price that we describe
in
the applicable prospectus supplement. Unless we otherwise specify 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 close of business
on
the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent 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
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.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent 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.
The
following description, together with the additional information we may include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the units that we may offer under this prospectus. 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. However, no prospectus supplement will fundamentally change the terms
that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness.
We
will
file as exhibits to the registration statement of which this prospectus is
a
part, or will incorporate by reference from another report that we file with
the
SEC, the form of unit agreement that describes the terms of the series of
units
we are offering, and any supplemental agreements, before the issuance of
the
related series of units. The following summaries of material terms and
provisions of the units are subject to, and qualified in their entirety by
reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read
the
applicable prospectus supplements related to the particular series of units
that
we sell under this prospectus, as well as the complete unit agreement and
any
supplemental agreements that contain the terms of the units.
General
We
may
issue units comprised of one or more debt securities, shares of common stock,
shares of preferred stock and warrants in any combination. 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
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 Capital Stock,” “Description of Debt Securities” and
“Description of Warrants” will apply to each unit and to any common stock,
preferred stock, debt security or warrant included in each unit,
respectively.
Issuance
in Series
We
may
issue units in such amounts and in 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 may, without the consent of the related
unit agent or the holder of any other unit, enforce by appropriate legal
action
its rights as holder under any security included in the unit.
Title
We,
the
unit agents 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 “Legal Ownership of
Securities.”
LEGAL
OWNERSHIP OF SECURITIES
We
can
issue securities in registered form or in the form of one or more global
securities. We describe global securities in greater detail below.
We refer to those persons who have securities registered in their own names
on
the books that we or any applicable trustee or 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. Global securities will be registered in the name of the
depositary. Consequently, for global securities, 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 global 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 holders, of the securities.
Street
Name Holders
We
may
terminate global securities or issue securities that are not issued in 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 or any applicable trustee or depositary
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 or any such trustee or depositary 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 holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third
party
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 holder, we have no
further responsibility for the payment or notice even if that holder is
required, under agreements with its 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 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 an indenture, or for other purposes. In such an
event, we would seek approval only from the holders, and not the indirect
holders, of the securities. Whether and how the holders contact the
indirect holders is up to the holders.
If
you
hold securities through a bank, broker or other financial institution, either
in
book-entry form because the securities are represented by one or more global
securities or in street name, you should check with your own institution
to find
out:
|
·
|
how
it handles securities payments and
notices;
|
|
·
|
whether
it imposes fees or charges;
|
|
·
|
how
it would handle a request for the holders’ consent, if ever
required;
|
|
·
|
whether
and how you can instruct it to send you securities registered in
your own
name so you can be a holder, if that is permitted in the
future;
|
|
·
|
how
it would exercise rights under the securities if there were a default
or
other event triggering the need for holders to act to protect their
interests; and
|
|
·
|
if
the securities are in book-entry form, how the depositary’s rules and
procedures will affect these
matters.
|
Global
Securities
A
global
security is a security that represents one or any other number of individual
securities held by a depositary. Generally, all securities represented by
the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security
that
we issue to, 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, The Depository Trust Company, New York,
New
York, known as 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 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 as a global security, 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
As
an
indirect holder, an investor’s rights 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 holder of securities and instead
deal
only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware
of
the following:
|
·
|
an
investor cannot cause the securities to be registered in his or
her name,
and cannot obtain non-global certificates for his or her interest
in the
securities, except in the special situations we describe
below;
|
|
·
|
an
investor will be an indirect holder and must look to his or her
own bank
or broker for payments on the securities and protection of his
or her
legal rights relating to the securities, as we describe
above;
|
|
·
|
an
investor may not be able to sell interests in the securities to
some
insurance companies and to other institutions that are required
by law to
own their securities in non-book-entry
form;
|
|
·
|
an
investor may not be able to pledge his or her interest in the global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge
in
order for the pledge to be
effective;
|
|
·
|
the
depositary’s policies, which may change from time to time, will govern
payments, transfers, exchanges and other matters relating to an
investor’s
interest in the global security. We and any applicable trustee have
no responsibility for any aspect of the depositary’s actions or for its
records of ownership interests in the global security. We and the
trustee also do not supervise the depositary in any
way;
|
|
·
|
the
depositary may, and we understand that DTC will, require that those
who
purchase and sell interests in the global security within its book-entry
system use immediately available funds, and your broker or bank
may
require you to do so as well; and
|
|
·
|
financial
institutions that participate in the depositary’s book-entry system, and
through which an investor holds its interest in the global security,
may
also have their own policies affecting payments, notices and other
matters
relating to the securities. There may be more than one financial
intermediary in the chain of ownership for an investor. We do not
monitor and are not responsible for the actions of any of those
intermediaries.
|
Special
Situations When a Global Security Will be
Terminated
In
a few
special situations described below, a 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 names, so that they will be direct
holders. We have described the rights of holders and street name investors
above.
A
global
security will terminate when the following special situations
occur:
|
·
|
if
the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and
we do not
appoint another institution to act as depositary within 90
days;
|
|
·
|
if
we notify any applicable trustee that we wish to terminate that
global
security; or
|
|
·
|
if
an event of default has occurred with regard to securities represented
by
that global security and has not been cured or
waived.
|
The
prospectus supplement may also list additional situations for terminating
a
global security that would apply only to the particular series of securities
covered by the 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.
We
may
sell the securities through underwriters or dealers, through agents, or directly
to one or more purchasers. A prospectus supplement or supplements will
describe the terms of the offering of the securities, including:
|
·
|
the
name or names of any underwriters or agents, if any;
|
|
·
|
the
purchase price of the securities and the proceeds we will receive
from the
sale;
|
|
·
|
any
over-allotment options under which underwriters may purchase additional
securities from us;
|
|
·
|
any
agency fees or underwriting discounts and other items constituting
agents’
or underwriters’ compensation;
|
|
·
|
any
public offering price;
|
|
·
|
any
discounts or concessions allowed or re-allowed or paid to dealers;
and
|
|
·
|
any
securities exchange or market on which the securities may be
listed.
|
Only
underwriters named in the prospectus supplement are underwriters of the
securities offered by the 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. Any public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may change from time to time. We
may use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement, naming the underwriter, the nature
of any
such relationship.
We
may
sell securities directly or through agents we designate from time to time.
We will name any agent involved in the offering and sale of securities and
we
will describe any commissions we will pay the agent in the prospectus
supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
We
may
authorize agents or underwriters to solicit offers by certain types of
institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the
future. We will describe the conditions to these contracts and the
commissions we must pay for solicitation of these contracts in the prospectus
supplement.
We
may
provide agents and underwriters with indemnification against civil liabilities
related to this offering, including liabilities under the Securities Act,
or
contribution with respect to payments that the agents or underwriters may
make
with respect to these liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary course of
business.
All
securities we offer, other than common stock, will be new issues of securities
with no established trading market. Any underwriters may make a market in
these securities, but will not be obligated to do so and may discontinue
any
market making at any time without notice. We cannot guarantee the
liquidity of the trading markets for any securities.
We
may
enter into derivative transactions with third parties, or sell securities
not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection
with those derivatives, the third parties may sell securities covered by
this
prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of stock.
We
may
also loan or pledge securities covered by this prospectus and any applicable
prospectus supplement to third parties, who may sell the loaned securities
or,
in an event of default in the case of a pledge, sell the pledged securities
pursuant to this prospectus and any applicable prospectus supplement (or
a
post-effective amendment).
Any
underwriter may engage in over-allotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under
the
Exchange Act. Over-allotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Short covering transactions involve purchases
of the securities in the open market after the distribution is completed
to
cover short positions. Penalty bids permit the underwriters to reclaim a
selling concession from a dealer when the securities originally sold by the
dealer are purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than
it
would otherwise be. If commenced, the underwriters may discontinue any of
the activities at any time.
CHARTER
AND BYLAWS REGARDING LIMITATION OF LIABILITY
The
Delaware
General Corporation Law (“DGCL”)
authorizes a corporation to 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 a corporation) by reason
of the
fact that the person 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 such person.
The
DGCL
also authorizes a corporation to indemnify any person who was or is a party,
or
was 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 the person 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, trust or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by the person,
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 Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the 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.
The
corporation
may only
indemnify an officer, director, employee or agent if:
|
·
|
the
indemnified person acted in good faith and in a manner reasonably
believed
by the person to be in, or not opposed to, the best interests of
the
corporation; and
|
|
·
|
in
the case of a criminal proceeding, the indemnified person had no
reasonable cause to believe his or her conduct was
unlawful.
|
No
indemnification
may be
made if it is determined that the individual did not meet the above listed
standards.
A
corporation’s
determination of whether to indemnify someone who is a director or officer
at
the time of such determination must be made:
|
·
|
by
a vote of the
majority of disinterested directors (even if less than a
quorum);
|
|
·
|
by
a committee of disinterested directors designated by the majority
vote of
the disinterested directors (even if less than a
quorum);
|
|
·
|
by
special legal counsel if there are fewer than two disinterested
directors
or if such disinterested directors so direct;
or
|
|
·
|
by
the stockholders, but shares owned by or voted by a director who
is not
disinterested may not be voted.
|
Where
a
present or former officer or director of the corporation defends a matter
successfully, indemnification for reasonable expenses is mandatory. Officers’
and directors’ expenses may be paid in advance of final disposition if the
person agrees to repay the advances if he or she is later determined not
to be
entitled to indemnification.
To
the
fullest extent permitted by applicable law, a corporation is authorized to
provide indemnification of (and advancement of expenses to) agents of the
company (and any other persons to which DGCL permits the company to provide
indemnification) through bylaw provisions, agreements with such agents or
other
persons, vote of stockholders or disinterested directors or otherwise, in
excess
of the indemnification and advancement otherwise permitted by Section 145
of the
DGCL, subject only to limits created by applicable DGCL (statutory or
non-statutory), with respect to actions for breach of duty to the corporation,
its stockholders, and others.
Our
certificate of incorporation provides that no director of the company shall
be
personally liable to the company or our stockholders for monetary damages
for
any breach of fiduciary duty by such a director as a director, except to
the
extent provided by applicable law (i) for any breach of the director’s duty
of loyalty to the company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the DGCL, or (iv) for any
transaction from which such director derived an improper personal benefit.
If
the DGCL is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Our
bylaws provide for the company to indemnify and hold harmless, to the fullest
extent permitted by the DGCL as it presently exists or may hereafter be amended,
any director or officer of the company. Our
bylaws also provide that expenses incurred by any officer or director in
defending any such action, suit or proceeding in advance of its final
disposition shall be paid by us upon delivery to us of an undertaking, by
or on
behalf of such director or officer, to repay all amounts so advanced if it
shall
ultimately be determined that such director or officer is not entitled to
be
indemnified by us.
As
permitted by the DGCL, we have entered into indemnity agreements with each
of
our directors and executive officers, that require us to indemnify such persons,
to the fullest extent permitted by the laws of the State of Delaware and
subject
to
certain procedures, against any and all expenses (including attorneys’ fees),
damages, judgments, fines, settlements and other amounts incurred in connection
with any action, suit or proceeding, whether actual or threatened, to which
any
such person may be made a party by reason of the fact that such person is
or was
a director or an officer of the company or was serving as the request of
the
company as a director or officer of another entity.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers, and persons controlling the company
pursuant to the foregoing provisions, or otherwise, the company has
been informed that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
The
validity of the issuance of the securities being offered by this prospectus
will
be passed upon by Kirkpatrick & Lockhart Preston Gates Ellis LLP, Seattle,
Washington.
EXPERTS
The
consolidated financial statements incorporated in this prospectus by reference
to our Annual Report on Form 10-KSB for the year ended December 31, 2007
have
been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an
independent registered public accounting firm, given on the authority of
said
firm as experts in auditing and accounting.
Certain
information with respect to our proven and probable reserves and economic
estimates that is incorporated herein by reference and derived from or otherwise
contained in the Mount Hope Project Molybdenum Mine and Process Plant
Feasibility Study of M3 Engineering & Technology Corp. has been so
incorporated upon the authority of said firm as experts with respect to the
matters covered by such report.
WHERE
YOU CAN FIND MORE INFORMATION
We
are
subject to the reporting requirements of the Exchange Act and file annual,
quarterly and current reports, proxy statements and other information with
the
SEC. You may read and copy these reports, proxy statements and other information
at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, DC 20549.
You can request copies of these documents by writing to the SEC and paying
a fee
for the copying cost. Please call the SEC at 1-800-SEC-0330 for further
information on the Public Reference Room. The SEC also maintains an Internet
site that contains reports, proxy statements and other information about
issuers, like us, who file electronically with the SEC. The address of the
SEC’s
web site is http://www.sec.gov.
This
prospectus is part of a registration statement we have filed with the SEC
relating to the securities we may offer. The SEC allows us to “incorporate by
reference” the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information we incorporate by reference is an important part of this prospectus,
and information that we file with the SEC at a later date will automatically
add
to, update or supersede this information. We incorporate by reference the
documents listed below (solely to the extent that such information set forth
in
any such document is filed with, as opposed to furnished to, the SEC under
the
Exchange Act):
|
·
|
the
description of our common stock contained in our registration statement
on
Form 8-A/A filed with the SEC on October 10,
2007;
|
|
·
|
our
Annual Report on Form 10-KSB for our fiscal year ended December
31,
2007;
|
|
·
|
our
Quarterly Report on Form 10-Q for our fiscal quarter ended March
31,
2008;
|
|
·
|
our
Current Reports on Form 8-K filed with the SEC on January 2, 2008,
January
15, 2008, February 12, 2008, February 19, 2008, February 22, 2008,
April
14, 2008, April 28, 2008, and April 29, 2008; and
|
|
·
|
all
future filings that we make with the SEC under Section 13(a), 13(c),
14,
or 15(d) of the Exchange Act after the date of filing of the registration
statement on Form S-3 of which this prospectus is a part and prior
to the
termination or completion of any offering of securities under this
prospectus and all applicable prospectus
supplements.
|
Sandra
Goebel
General
Moly, Inc.
1726
Cole
Blvd., Suite 115
Lakewood,
Colorado 80401
Telephone:
(303) 928-8599
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses to be paid by us in connection
with the sale of the securities being registered hereby. All amounts are
estimates, except for the SEC registration fee.
|
|
$
|
19,650
|
|
Accounting
fees and expenses
|
|
$
|
30,000
|
|
Printing
expenses
|
|
$
|
10,000
|
|
Legal
fees and expenses
|
|
$
|
100,000
|
|
Miscellaneous
expenses
|
|
$
|
10,350
|
|
Total
|
|
$
|
170,000
|
|
Item
15. Indemnification of Directors and Officers.
The
DGCL
authorizes a corporation to 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 a corporation)
by
reason of the fact that the person 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 such person.
The
DGCL
also authorizes a corporation to indemnify any person who was or is a party,
or
was 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 the person 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, trust or other enterprise against expenses (including
attorneys’ fees) actually and reasonably incurred by the person, 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 Court of Chancery or the court in
which
such action or suit was brought shall determine upon application that, despite
the 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.
The
corporation may only indemnify an officer, director, employee or agent
if:
(i) the
indemnified person acted in good faith and in a manner reasonably believed
by
the person to be in, or not opposed to, the best interests of the corporation;
and
(ii) in
the
case of a criminal proceeding, the indemnified person had no reasonable cause
to
believe his or her conduct was
unlawful.
No
indemnification
may be
made if it is determined that the individual did not meet the above listed
standards.
A
corporation’s determination of whether to indemnify someone who is a director or
officer at the time of such determination must be made:
(i) by
a
vote
of the
majority of disinterested directors (even if less than a quorum);
(ii) by
a
committee of disinterested directors designated by the majority vote of the
disinterested directors (even if less
than a
quorum);
(iii) by
special legal counsel if there are fewer than two disinterested directors
or if
such disinterested directors so direct; or
(iv) by
the
stockholders, but shares owned by or voted by a director who is not
disinterested may not be voted.
Where
a
present or former officer or director of the corporation defends a matter
successfully, indemnification for reasonable expenses is mandatory. Officers’
and directors’ expenses may be paid in advance of final disposition if the
person agrees to repay the advances if he or she is later determined not
to be
entitled to indemnification.
To
the
fullest extent permitted by applicable law, a corporation is authorized to
provide indemnification of (and advancement of expenses to) agents of the
company (and any other persons to which DGCL permits the company to provide
indemnification) through bylaw provisions, agreements with such agents or
other
persons, vote of stockholders or disinterested directors or otherwise, in
excess
of the indemnification and advancement otherwise permitted by Section 145 of the
DGCL, subject only to limits created by applicable DGCL (statutory or
non-statutory), with respect to actions for breach of duty to the corporation,
its stockholders, and others.
Our
certificate of incorporation provides that no director of the company shall
be
personally liable to the company or our stockholders for monetary damages
for
any breach of fiduciary duty by such a director as a director, except to
the
extent provided by applicable law (i) for any breach of the director’s duty
of loyalty to the company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the DGCL, or (iv) for any
transaction from which such director derived an improper personal benefit.
If
the DGCL is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Our
bylaws provide for the company to indemnify and hold harmless, to the fullest
extent permitted by the DGCL as it presently exists or may hereafter be amended,
any director or officer of the company. Our
bylaws also provide that expenses incurred
by any
officer or director in defending any such action, suit or proceeding in advance
of its final disposition shall be paid by us upon delivery to us of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified by us.
As
permitted by the DGCL, we have entered into indemnity agreements with each
of
our directors and executive officers, that require us to indemnify such persons,
to the fullest extent permitted by the laws of the State of Delaware and
subject
to certain procedures, against any and all expenses (including attorneys’ fees),
damages, judgments, fines, settlements and other amounts incurred in connection
with any action, suit or proceeding, whether actual or threatened, to which
any
such person may be made a party by reason of the fact that such person is
or was
a director or an officer of the company or was serving as the request of
the
company as a director or officer of another entity.
At
present, there is no pending litigation or proceeding involving any of our
directors or executive officers as to which indemnification is required or
permitted, and we are not aware of any threatened litigation or proceeding
that
may result in a claim for indemnification.
We
have
an insurance policy covering our officers and directors with respect to certain
liabilities, including liabilities arising under the
Securities Act or otherwise.
Item
16. Exhibits.
The
following exhibits are filed herewith and as a part of this registration
statement:
Number
|
|
Description
|
1.1
|
|
Form
of Underwriting Agreement (1)
|
2.1
|
|
Agreement
and Plan of Merger dated October 5, 2007 (incorporated by reference
from
Exhibit 99.1 to the Current Report of the registrant on Form 8-K
filed on
October 5, 2007)
|
4.1
|
|
Certificate
of Incorporation (incorporated by reference from Exhibit 3.1 to
the
Current Report of the registrant on Form 8-K filed on October 5,
2007)
|
4.2
|
|
Bylaws
(incorporated by reference from Exhibit 3.2 to the Current Report
of the
registrant on Form 8-K filed on October 5, 2007)
|
4.3
|
|
Form
of Senior Indenture
|
4.4
|
|
Form
of Subordinated Indenture
|
4.5
|
|
Form
of Senior Debt Securities (1)
|
4.6
|
|
Form
of Subordinated Debt Securities (1)
|
4.7
|
|
Form
of Unit Agreement (1)
|
|
|
Form
of Warrant Agreement (1)
|
5.1
|
|
Opinion
of Kirkpatrick & Lockhart Preston Gates Ellis LLP
|
23.1
|
|
Consent
of Kirkpatrick & Lockhart Preston Gates Ellis LLP (included in Exhibit
5.1)
|
23.2
|
|
Consent
of PricewaterhouseCoopers LLP
|
23.3
|
|
Consent
of M3 Engineering and Technology Corp.
|
23.4
|
|
Consent
of Independent Mining Consultants, Inc.
|
24.1
|
|
Power
of Attorney (included on signature page)
|
25.1
|
|
Form
T-1 Statement of Eligibility of Trustee for Indenture under the
Trust
Indenture Act of 1939 (1)
|
(1) |
To
the extent applicable, to be filed by an amendment to this registration
statement or incorporated by reference pursuant to a Current Report
of the
registrant on Form 8-K in connection with an offering of
securities.
|
Item
17. Undertakings.
(a) 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;
(ii) To
reflect in the prospectus any facts or events arising after the effective
date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in 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.
(2) That,
for
the purpose 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 that time shall be deemed to be the initial bona fide offering
thereof;
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(4) That,
for
the purpose of determining liability of the registrant under the Securities
Act
of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser,
if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to
the
purchaser and will be considered to offer or sell such securities to such
purchaser: (i) any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) any free writing prospectus relating to the offering prepared by or
on
behalf of the undersigned registrant or used or referred to by the undersigned
registrant; (iii) the portion of any other free writing prospectus relating
to
the offering containing material information about the undersigned registrant
or
its securities provided by or on behalf of the undersigned registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(5) That:
(i)
for purposes of determining any liability under the Securities Act of 1933,
the
information omitted from the form of prospectus filed as part of the
registration statement in reliance upon Rule 430A and contained in the 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 the registration
statement as of the time it was declared effective; and (ii) for the purpose
of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
(6) That,
if
the issuer is relying on Rule 430B, for the purpose of determining liability
under the Securities Act of 1933 to any purchaser:
(i) 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
(ii) 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.
(7) If
the
issuer 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 a 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.
(8) That,
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.
(9) The
undersigned registrant hereby undertakes that, for the purpose of determining
any liability under the Securities Act, each filing of the registrant’s annual
report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of
1934 that is incorporated by reference in this registration statement shall
be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be
the initial bona fide offering thereof
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
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 Act and will be governed by the final adjudication
of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement to be
signed
on its behalf by the undersigned, thereunto duly authorized in Lakewood,
Colorado on May 8, 2008.
|
|
|
|
GENERAL
MOLY, INC.
|
|
|
|
|
|
|
|
By:
|
/s/
Bruce D. Hansen
|
|
Bruce
D. Hansen
|
|
Chief
Executive Officer
|
POWER
OF ATTORNEY
Know
all
persons by these presents that the individual whose signature appears below
constitutes and appoints Bruce D. Hansen and David A. Chaput and each of
them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to sign any registration statement for
the
same offering covered by this registration statement that is to be effective
upon filing pursuant to Rule 462 promulgated under the Securities Act, and
all
post-effective amendments thereto, and to file the same, with all exhibits
thereto and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each
of them, full power and authority to do and perform each and every act and
thing
requisite and necessary to be done in and about the premises, as fully to
all
intents and purposes as he might or could do in person, hereby ratifying
and
confirming all that said attorneys-in-fact and agents or any of them, or
his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities set forth below
on
May 8, 2008.
/s/
Bruce
D. Hansen
|
|
|
|
Chief
Executive Officer and Director
|
Bruce
D. Hansen
|
|
(Principal
Executive Officer)
|
/s/
David
A. Chaput
|
|
|
|
Chief
Financial Officer
|
David
A. Chaput
|
|
(Principal
Financial Officer)
|
/s/
Daniel G. Zang
|
|
|
|
Controller
and Treasurer
|
Daniel
G. Zang
|
|
(Principal
Accounting Officer)
|
/s/
Ricardo M. Campoy
|
|
|
|
Director
|
Ricardo
M. Campoy
|
|
|
/s/
Mark A. Lettes
|
|
|
|
Director
|
Mark
A. Lettes
|
|
|
/s/
Jean-Pierre M. Ergas
|
|
|
|
Director
|
Jean-Pierre
M. Ergas
|
|
|
/s/
Gary A. Loving
|
|
|
|
Director
|
Gary
A. Loving
|
|
|
/s/
R. David Russell
|
|
|
|
Director
|
R.
David Russell
|
|
|
/s/
Richard F. Nanna
|
|
|
|
Director
|
Richard
F. Nanna
|
|
|