POSASR 1 d837885dposasr.htm POSASR POSASR

As filed with the Securities and Exchange Commission on December 12, 2019

Registration No. 333-221221

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

POST-EFFECTIVE AMENDMENT NO. 2 TO FORM F-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

CONSTELLIUM SE

(Exact Name of registrant as specified in its charter)

 

 

 

France   3341   98-0777516
(State or Other Jurisdiction
of Incorporation)		   (Primary Standard Industrial
Classification Code Number)		   (IRS Employer
Identification No.)

Washington Plaza

40-44, rue Washington

75008 Paris, France

+33 1 73 01 46 20

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Corporation Service Company

80 State Street

Albany, NY 12207-2543

(518) 433-4740

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Jeremy Leach

Senior Vice President and Group General Counsel

Constellium SE

Washington Plaza

40-44, rue Washington

75008 Paris, France

  

Andrew J. Nussbaum

Karessa L. Cain

Elina Tetelbaum

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10019

 

 

Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  ☐

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  ☒

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large Accelerated Filer   ☒    Accelerated Filer   ☐
Non-Accelerated Filer   ☐  (Do not check if a smaller reporting company)    Smaller Reporting Company   ☐

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.

Emerging growth company  ☐

If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

†

The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of each class of

securities to be registered

   Amount to be
registered(1)		  

Proposed

maximum
offering price
per unit(1)

  

Proposed

maximum

aggregate

offering price(1)

   Amount of
registration fee(1)

Ordinary shares, par value €0.02 per share

                

 

 

(1)

An indeterminate amount of the securities is being registered as may from time to time be offered hereunder at indeterminate prices. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of all registration fees and will pay the registration fees subsequently in advance or on a “pay-as-you-go” basis.

 

 

 

EXPLANATORY NOTE

This Post-Effective Amendment No. 2 (this “Amendment”) to the Form F-3ASR registration statement (File No. 333-221221) (the “Registration Statement”) is being filed in accordance with Rule 414(d) under the Securities Act of 1933, as amended (the “Securities Act”), by Constellium SE (“Constellium SE”), a European company (“Societas Europaea”, the successor registrant to Constellium N.V. (“Constellium N.V.”), a Dutch public limited liability company (“Naamloze Vennootschap”)). Effective on June 28, 2019, Constellium N.V. converted from a Naamloze Vennootschap governed by the laws of the Netherlands with its corporate seat/registered office and headquarters in Amsterdam, the Netherlands to a Societas Europaea governed by the laws of the Netherlands with its corporate seat/registered office and headquarters in Amsterdam, the Netherlands (the “Conversion”). The Conversion was part of the previously disclosed transaction to transfer the corporate seat/registered office and headquarters to Paris, France (the “Transfer”). Following the approval of Constellium SE’s shareholders on November 25, 2019 (“EGM Approval”), the Transfer became effective on December 12, 2019 upon the effectiveness of the registration of Constellium SE with the French Commercial Court and pursuant to French law (the “French Registration”). Following the EGM approval, Constellium SE also executed a deed of amendment amending its articles of association to conform with French law (as so amended, the “Articles of Association”), which also became effective on December 12, 2019, upon the French Registration. Constellium SE expressly adopts the Registration Statement, as modified by this Amendment, as its own registration statement for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

For the purposes of this Amendment and the Registration Statement, (i) as of any time prior to the Conversion, references to the “Registrant,” “Constellium” and similar terms mean Constellium N.V. and its consolidated subsidiaries and, as of any time after the Conversion, mean Constellium SE and its consolidated subsidiaries; (ii) as of any time prior to the Conversion, references to “shareholders” mean the holders of any Class A ordinary shares, par value €0.02 per ordinary share, of Constellium N.V., as of any time after the Conversion (but before the Transfer), mean the holders of any Class A ordinary shares, par value €0.02 per ordinary share, of Constellium SE with its corporate seat/registered office and headquarters in Amsterdam, the Netherlands; and (iii) as of any time after the Transfer, references to “shareholders” mean the holders of any ordinary shares, par value €0.02 per ordinary share, of Constellium SE with its corporate seat/registered office and headquarters in Paris, France.

In connection with the Transfer, Constellium SE has amended the Constellium SE 2013 Equity Incentive Plan (the “Plan”) with Amendment No. 3 to the Plan, which is filed as an exhibit to this Amendment and is hereby incorporated by reference into this Amendment. The rights of holders of Constellium SE’s ordinary shares are now governed by its Articles of Association, which are filed as an exhibit to this Amendment and are hereby incorporated by reference into this Amendment.

The prospectus contained in the Registration Statement incorporates by reference all documents filed by Constellium SE under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of the Registration Statement (except for (i) Exhibit 99.2, the second paragraph of Exhibit 99.1 (containing certain quotes by the Chief Executive Officer) and the section titled “Outlook” in Exhibit 99.1 to the Form 6-K furnished to the Commission on February 21, 2019; (ii) Exhibit 99.2, the second paragraph of Exhibit 99.1 (containing certain quotes by the Chief Executive Officer) and the section titled “Outlook” in Exhibit 99.1 to the Form 6-K furnished to the Commission on May 31, 2019; (iii) Exhibit 99.2, the second paragraph of Exhibit 99.1 (containing certain quotes by the Chief Executive Officer) and the section titled “Outlook” in Exhibit 99.1 to the first Form 6-K furnished to the Commission on July 25, 2019; (iv) Exhibit 99.2, the second paragraph of Exhibit 99.1 (containing certain quotes by the Chief Executive Officer) and the section titled “Outlook” in Exhibit 99.1 to the Form 6-K furnished to the Commission on October 24, 2019; and (v) any information from Constellium SE’s website) and will incorporate by reference all documents filed by Constellium SE under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act following the date of this Amendment. The prospectus contained in the Registration Statement, as well as all documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act before the effective time of the Conversion and incorporated by reference in the Registration Statement, will not reflect the change in our name, type of legal entity or capital stock, among other things. With respect to such information, or any other information contained or incorporated by reference in the Registration Statement that is modified by information subsequently incorporated by reference in the Registration Statement, the statement or information previously contained or incorporated in the Registration Statement shall also be deemed modified or superseded in the same manner.

The Registration Statement shall remain unchanged in all other respects. Accordingly, this Amendment consists only of this explanatory note and revised versions of the following parts of the Form F-3ASR: Part II, the signatures, the exhibit index and the exhibits filed in connection with this Amendment.

PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 8. Indemnification of Directors and Officers

Following the Transfer, the Proposed Articles of Association will provide that the members and former members of the Board of Directors (the “Board”) shall be reimbursed for:

 

  a)

reasonable cost of conducting a defense against claims, including claims by Constellium SE (other than such claims for which such members or former members of the Board have been declared responsible for by a final court decision), based on acts or failures to act in the exercise of their duties or any other duties currently or previously performed by them at Constellium SE’s request; and

 

  b)

any damages payable by them as a result of an act or failure to act in the exercise of their duties or any other duties currently or previously performed by them at Constellium SE’s request.

There shall be no entitlement to indemnity:

 

  a)

if and to the extent the laws of France would not permit such indemnification;

 

  b)

if and to the extent a competent court has established in a final and conclusive decision that the act or failure to act of the current or former member of the Board may be characterized as willful (faute intentionnelle), intentionally reckless (faute lourde) or falling outside the exercise of its duties (faute détachable); or

 

  c)

if and to the extent the costs, damages or fines payable by the current or former member of the Board are covered by any liability insurance and the insurer has paid out the costs, damages or fines.

Except if the claim is instituted by the Company itself, the relevant current or former member of the Board shall follow the Company’s instructions relating to the manner of his or her defense and consult with the Company in advance about the manner of such defense. The person concerned shall not: (i) acknowledge any personal liability, (ii) waive any defense, or (iii) agree on a settlement, without the Company’s prior written consent. The Company may take out liability insurance for the benefit of current or former members of the Board.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the Commission, indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 9. Exhibits

The index to exhibits appears below on the page immediately following the signature pages of this Amendment to the Registration Statement.

Item 10. Undertakings

 

(1)

The undersigned registrant hereby undertakes:

 

  (a)

To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

  (i)

to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, or the Securities Act;

 

  (ii)

to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

  (iii)

to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in this Registration Statement;

provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, or the Exchange Act that are incorporated by reference in this Registration Statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.

 

  (b)

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.

 

  (c)

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.

 

  (d)

To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (1)(d) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.

 

  (e)

That, for the purpose of determining any liability under the Securities Act to any purchaser:

 

  (i)

each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be a 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 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 the 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.

 

  (f)

That, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of 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 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 an 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.

 

(2)

The undersigned registrant hereby undertakes that, for purposes 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 Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the 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 Securities Act and will be governed by the final adjudication of such issue.

 

(4)

The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, 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.

 

(5)

The undersigned registrant hereby undertakes that, 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.

EXHIBIT INDEX

The following documents are filed as part of this registration statement:

 

Exhibit Number   Exhibit Document
  1.1+   Form of Underwriting Agreement
  3.1   Articles of Association of Constellium SE, a European Company registered in France (incorporated by reference to Exhibit 3.1 of Constellium SE’s Form 6-K filed on December 12, 2019)
  4.1*   Sixth Supplemental Indenture (4.625% Senior Notes due 2021), dated June  28, 2019, among Constellium SE, Deutsche Bank Trust Company Americas, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent and Deutsche Bank Luxembourg S.A., as Registrar and Transfer Agent
  4.2*   Sixth Supplemental Indenture (5.750% Senior Notes due 2024), dated June 28, 2019, among Constellium SE and Deutsche Bank Trust Company Americas, as Trustee
  4.3*   Third Supplemental Indenture (6.625% Senior Notes due 2025), dated as of June 28, 2019, among Constellium SE and Deutsche Bank Trust Company Americas, as Trustee
  4.4*   Third Supplemental Indenture (5.875% Senior Notes due 2026), dated June 28, 2019, among Constellium SE and Deutsche Bank Trust Company Americas, as Trustee
  4.5*   Third Supplemental Indenture (4.250 % Senior Notes due 2026), dated June  28, 2019, among Constellium SE, Deutsche Bank Trust Company Americas, as Trustee, Deutsche Bank AG, London Branch, as Principal Paying Agent and Deutsche Bank Luxembourg S.A., as Registrar and Transfer Agent
  5.1*   Opinion of Shearman & Sterling LLP, French counsel to Constellium SE, as to the validity of the ordinary shares
10.1   Amendment No.  3 to the Constellium N.V. 2013 Equity Incentive Plan, effective as of December 12, 2019 (incorporated by reference to Exhibit 10.1 of Constellium SE’s Form 6-K filed on December 12, 2019)
23.1*   Consent of PricewaterhouseCoopers Audit, Independent Registered Public Accounting Firm
23.2*   Consent of PricewaterhouseCoopers LLP, Independent Auditors
23.3*   Consent of Shearman & Sterling LLP (included as part of Exhibit 5.1)
24.1   Power of Attorney for Richard B. Evans, Guy Maugis, Philippe Guillemot, Werner P. Paschke, Michiel Brandjes, Peter F. Hartman, John Ormerod, Lori A. Walker and Martha Brooks (included on the signature page to Constellium N.V.’s Registration Statement on Form F-3ASR (Registration No. 333-221221) filed on October 30, 2017)
24.2   Power of Attorney for Stéphanie Frachet (incorporated by reference to Exhibit 24.2 of Post-Effective Amendment No.  1 to Constellium SE’s Registration Statement on Form F-3 (Registration No. 333-221221) filed on June 28, 2019)
99.1   Transfer of Corporate Seat Proposal of Constellium SE, as filed with the Dutch Trade Register on June  28, 2019 (incorporated by reference to Exhibit 99.2 of Amendment No. 1 to Constellium SE’s Registration Statement on Form F-4 (Registration No.  333-231906) filed on October 21, 2019)

 

*

Filed herewith.

+

To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a Form 6-K to be filed by the registrant in connection with a specific offering, and incorporated herein by reference.

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 F-3 and has duly caused this Post-Effective Amendment No. 2 to be signed on its behalf by the undersigned, thereunto duly authorized, in Paris, France, on December 12, 2019.

 

CONSTELLIUM SE
By:   /s/ Jean-Marc Germain
Name: Jean-Marc Germain
Title:   Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated below.

 

Name

   

Title

  

Date

/s/ Jean-Marc Germain

Jean-Marc Germain

   

Chief Executive Officer and Executive Director

(Principal Executive Officer)

   December 12, 2019

/s/ Peter R. Matt

Peter R. Matt

   

Chief Financial Officer

(Principal Financial Officer and Principal Accounting Officer)

   December 12, 2019

                *

Richard B. Evans

   

Chairman

   December 12, 2019

                *

Guy Maugis

   

Director

   December 12, 2019

                *

Philippe Guillemot

   

Director

   December 12, 2019

                *

Werner P. Paschke

   

Director

   December 12, 2019

                *

Michiel Brandjes

   

Director

   December 12, 2019

                *

Peter F. Hartman

   

Director

   December 12, 2019

                *

John Ormerod

   

Director

   December 12, 2019

                *

Lori A. Walker

   

Director

   December 12, 2019

                *

Martha Brooks

   

Director

   December 12, 2019

                *

Stéphanie Frachet

   

Director

   December 12, 2019

[Signature Page to POS ASR (Reg. No. 333-221221)]

*By:   /s/ Rina Teran
  Rina Teran
  Attorney-in-Fact

[Signature Page to POS ASR (Reg. No. 333-221221)]

AUTHORIZED REPRESENTATIVE

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has caused the amendment to this Post-Effective Amendment No. 1 to the Registration Statement to be signed solely in the capacity as the duly authorized representative of Constellium SE in the United States on December 12, 2019.

 

Constellium US Holdings I, LLC
By:   /s/ Rina Teran
  Name: Rina Teran
  Title: Vice President & Secretary

[Signature Page to POS ASR (Reg. No. 333-221221)]