Delaware | | | 84-1271317 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer ☐ | | | Accelerated filer ☒ |
Non-accelerated filer ☐ | | | Smaller reporting company ☒ |
| | Emerging growth company ☐ |
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• | Annual Report on Form 10-K for the year ended December 31, 2022 filed March 10, 2023, including information specifically incorporated by reference from our Definitive Proxy Statement for our 2023 Annual Meeting of Stockholders filed April 28, 2023; |
• | Quarterly Report on Form 10-Q for the quarter ended March 31, 2023 filed May 9, 2023; |
• | Current Reports on Form 8-K and any amendments thereto filed March 21, 2023, April 4, 2023 and May 17, 2023; and |
• | The description of our common stock contained in the Current Report on Form 8-K filed July 11, 2005, as supplemented by the description of our common stock contained in Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 13, 2020, including any amendment or report filed for the purpose of updating such description. |
• | Prior to completion of the business combination, a majority (but not fewer than two) of the “continuing directors” approve such business combination. “Continuing directors” means directors other than the relevant interested stockholder or an affiliate, associate, employee, agent or nominee of such interested |
• | Stockholders other than the interested stockholder are entitled to receive consideration in such business combination that exceeds certain thresholds set forth in our certificate of incorporation. |
• | Prior to such date, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
• | Upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares of voting stock outstanding, those shares owned (1) by persons who are directors and also officers and (2) by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
• | On or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders and not by written consent, by the affirmative vote of at least 66 2∕3% of the outstanding voting stock which is not owned by the interested stockholder. |
• | the designation of each series and the number of shares constituting each series; |
• | dividend rights and rates and whether any dividends are cumulative, partially cumulative or non-cumulative; |
• | rights and terms of redemption, including sinking fund provisions and redemption prices; |
• | liquidation preferences; |
• | voting rights; |
• | conversion rights and terms; and |
• | terms concerning the distribution of assets. |
• | the title and stated value of the preferred stock; |
• | the number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock; |
• | the dividend rates, periods or payment dates or methods of calculation applicable to the preferred stock; |
• | whether dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock will accumulate; |
• | the procedures for any auction and remarketing, if any, for the preferred stock; |
• | the provisions for a sinking fund, if any, for the preferred stock; |
• | the provision for redemption, if applicable, of the preferred stock; |
• | any listing of the preferred stock on any securities exchange; |
• | the terms and conditions, if applicable, upon which the preferred stock will be convertible into common stock, including the conversion price or manner of calculation and conversion period; |
• | voting rights, if any, of the preferred stock; |
• | a discussion of any material or special U.S. federal income tax considerations applicable to the preferred stock; |
• | the relative ranking and preferences of the preferred stock as to dividend rights and rights upon the liquidation, dissolution or winding up of our affairs; |
• | any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the class or series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and |
• | any other specific terms, preferences, rights, limitations or restrictions of the preferred stock. |
• | senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock; |
• | on a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a parity with the preferred stock; and |
• | junior to all of our equity securities the terms of which specifically provide that the equity securities rank senior to the preferred stock. |
• | do not limit the amount of debt securities that we may issue; |
• | allow us to issue debt securities in one or more series; |
• | do not require us to issue all of the debt securities of a series at the same time; |
• | allow us to reopen a series to issue additional debt securities without the consent of the debt securityholders of such series; and |
• | provide that the debt securities will be unsecured. |
• | the title of the debt securities and whether they are senior or subordinated; |
• | the aggregate principal amount of the debt securities being offered, the aggregate principal amount of the debt securities outstanding as of the most recent practicable date and any limit on their aggregate principal amount, including the aggregate principal amount of debt securities authorized; |
• | the price at which the debt securities will be issued, expressed as a percentage of the principal; |
• | the portion of the principal payable upon declaration of acceleration of the maturity, if other than the principal amount; |
• | the date or dates, or the method for determining the date or dates, on which the principal of the debt securities will be payable; |
• | the fixed or variable interest rate or rates at which the debt securities will bear interest, if any, or the method by which the interest rate or rates is determined; |
• | the date or dates, or the method for determining the date or dates, from which interest will accrue; |
• | the dates on which interest will be payable; |
• | the record dates for interest payment dates, or the method by which we will determine those dates; |
• | the persons to whom interest will be payable; |
• | the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months; |
• | any make-whole amount, which is the amount in addition to principal and interest that is required to be paid to the holder of a debt security as a result of any optional redemption or accelerated payment of such debt security, or the method for determining the make-whole amount; |
• | the place or places where the principal of, and any premium (or make-whole amount) and interest on, the debt securities will be payable; |
• | where the debt securities may be surrendered for registration of transfer or exchange; |
• | where notices or demands to or upon us in respect of the debt securities and the applicable indenture may be served; |
• | the times, prices and other terms and conditions upon which we may redeem the debt securities; |
• | any obligation we have to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision or at the option of holders of the debt securities, and the times and prices at which we must redeem, repay or purchase the debt securities as a result of such an obligation; |
• | the currency or currencies in which the debt securities are denominated and payable if other than United States dollars, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies and the terms and conditions relating thereto, and the manner of determining the equivalent of such foreign currency in United States dollars; |
• | if other than denominations of $1,000 or an even multiple of $1,000, the denominations in which the debt securities will be issued; |
• | whether the principal of, and any premium (or make-whole amount) or interest on, the debt securities of the series are to be payable, at our election or at the election of a holder, in a currency or currencies other than that in which the debt securities are denominated or stated to be payable, and other related terms and conditions; |
• | whether the amount of payments of principal of, and any premium (or make-whole amount) or interest on, the debt securities may be determined according to an index, formula or other method and how such amounts will be determined; |
• | whether the debt securities will be in registered form, bearer form or both and (1) if in registered form, the person to whom any interest shall be payable, if other than the person in whose name the security is registered at the close of business on the regular record date for such interest, or (2) if in bearer form, the manner in which, or the person to whom, any interest on the security shall be payable if otherwise than upon presentation and surrender upon maturity; |
• | any restrictions applicable to the offer, sale or delivery of securities in bearer form and the terms upon which securities in bearer form of the series may be exchanged for securities in registered form of the series and vice versa if permitted by applicable laws and regulations; |
• | whether any debt securities of the series are to be issuable initially in temporary global form and whether any debt securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global security may or shall be required to exchange their interests for other debt securities of the series, and the manner in which interest shall be paid; |
• | the identity of the depositary for securities in registered form, if such series are to be issuable as a global security; |
• | the date as of which any debt securities in bearer form or in temporary global form shall be dated if other than the original issuance date of the first security of the series to be issued; |
• | the applicability, if any, of the defeasance and covenant defeasance provisions described in this prospectus or in the applicable indenture; |
• | whether and under what circumstances we will pay any additional amounts on the debt securities in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities in lieu of making such a payment; |
• | the circumstances, if any, in the applicable prospectus supplement, under which beneficial owners of interests in the global security may obtain definitive debt securities and the manner in which payments on a permanent global debt security will be made if any debt securities are issuable in temporary or permanent global form; |
• | any provisions granting special rights to holders of securities upon the occurrence of such events as specified in the applicable prospectus supplement; |
• | the name of the applicable trustee and the nature of any material relationship with us or any of our affiliates, and the percentage of debt securities of the class necessary to require the trustee to take action; |
• | any deletions from, modifications of, or additions to our events of default or covenants and any change in the right of any trustee or any of the holders to declare the principal amount of any of such debt securities due and payable; and |
• | any other terms of such debt securities not inconsistent with the provisions of the applicable indenture. |
• | exchange them for any authorized denomination of other debt securities of the same series and of a like aggregate principal amount and kind upon surrender of such debt securities at the corporate trust office of the applicable trustee or at the office of any transfer agent that we designate for such purpose; and |
• | surrender them for registration of transfer or exchange at the corporate trust office of the applicable trustee or at the office of any transfer agent that we designate for such purpose. |
• | issue, register the transfer of, or exchange debt securities of any series during a period beginning at the opening of business 15 days before the day that the notice of redemption of any debt securities selected for redemption is mailed and ending at the close of business on the day of such mailing; |
• | register the transfer of or exchange any debt security, or portion thereof, so selected for redemption, in whole or in part, except the unredeemed portion of any debt security being redeemed in part; or |
• | issue, register the transfer of or exchange any debt security that has been surrendered for repayment at the option of the holder, except the portion, if any, of such debt security not to be so repaid. |
• | either we are the continuing entity, or the successor entity, if other than us, assumes the obligations (A) to pay the principal of, and any premium (or make-whole amount) and interest on, all of the debt securities and (B) to duly perform and observe all of the covenants and conditions contained in each indenture; |
• | after giving effect to the transaction, there is no event of default under the indentures and no event which, after notice or the lapse of time, or both, would become such an event of default, occurs and continues; and |
• | an officers' certificate and legal opinion covering such conditions are delivered to each applicable trustee. |
• | default in the payment of any installment of interest on any debt security of such series continuing for 30 days; |
• | default in the payment of principal of (or any premium or make-whole amount, if any, on) any debt security of such series at its maturity; |
• | default in deposit of any sinking fund payment as required for any debt security of such series; |
• | default in the performance or breach of any of our covenants or warranties contained in the applicable indenture continuing for 60 days after written notice to us as provided in the applicable indenture; |
• | a default under any indenture or instrument under which there may be issued, secured or evidenced any existing or later created indebtedness for money we or any of our subsidiaries borrowed in an aggregate principal amount outstanding of at least $30,000,000, if the default results in the indebtedness becoming or being declared due and payable prior to the date it otherwise would have, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within 30 days after notice to us specifying such default; |
• | bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or our significant subsidiary; and |
• | any other event of default provided with respect to a particular series of debt securities. |
• | we have paid or deposited with the applicable trustee all required payments of the principal, any premium (or make-whole amount), and interest, plus applicable fees, expenses, disbursements and advances of the applicable trustee; and |
• | all events of default, other than the non-payment of accelerated principal, or a specified portion thereof, and any premium (or make-whole amount), have been cured or waived. |
• | in the payment of the principal, any premium (or make-whole amount) or interest; or |
• | in respect of a covenant or provision contained in the applicable indenture that cannot be modified or amended without the consent of the holder of the outstanding debt security that is affected by the default; or |
• | in respect of a covenant or provision for the benefit or protection of the trustee, without its express written consent. |
• | is in conflict with any law or the applicable indenture; |
• | may involve the trustee in personal liability; or |
• | may be unduly prejudicial to the holders of debt securities of the series not joining the proceeding. |
• | change the stated maturity of the principal of, or any premium (or make-whole amount) on, or any installment of principal of or interest on, any such debt security; |
• | reduce the principal amount of, the rate or amount of interest on or any premium (or make-whole amount) payable on redemption of any such debt security; |
• | reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of the maturity thereof or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any such debt security; |
• | change the place of payment or the coin or currency for payment of principal of, or any premium (or make-whole amount) or interest on, any such debt security; |
• | impair the right to institute suit for the enforcement of any payment on or with respect to any such debt security; |
• | reduce the percentage in principal amount of any outstanding debt securities necessary to modify or amend the applicable indenture with respect to such debt securities, to waive compliance with particular provisions thereof or defaults and consequences thereunder or to reduce the quorum or voting requirements set forth in the applicable indenture; or |
• | modify any of the foregoing provisions or any of the provisions relating to the waiver of particular past defaults or covenants, except to increase the required percentage to effect such action or to provide that some of the other provisions may not be modified or waived without the consent of the holder of such debt security. |
• | to evidence the succession of another person to us as obligor under such indenture; |
• | to add to our covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon us in such indenture; |
• | to add events of default for the benefit of the holders of all or any series of debt securities; |
• | to change or eliminate any provisions of an indenture, provided that any such change or elimination shall become effective only when there are no debt securities outstanding of any series created prior thereto which are entitled to the benefit of such provision; |
• | to secure the debt securities; |
• | to establish the form or terms of debt securities of any series; |
• | to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under an indenture by more than one trustee; |
• | to cure any ambiguity, defect or inconsistency in an indenture, provided that such action shall not adversely affect the interests of holders of debt securities of any series issued under such indenture; |
• | to supplement any of the provisions of an indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of such debt securities, provided that such action shall not adversely affect the interests of the holders of the outstanding debt securities of any series; and |
• | to make provisions with respect to holders' rights of conversion with respect to any series of debt securities. |
• | the principal amount of an original issue discount security that shall be deemed to be outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon declaration of acceleration of the maturity thereof; |
• | the principal amount of any debt security denominated in a foreign currency that shall be deemed outstanding shall be the United States dollar equivalent, determined on the issue date for such debt security, of the principal amount or, in the case of an original issue discount security, the United States dollar equivalent on the issue date of such debt security of the amount determined as provided in the preceding bullet point; |
• | the principal amount of an indexed security that shall be deemed outstanding shall be the principal face amount of such indexed security at original issuance, unless otherwise provided for such indexed security under such indenture; and |
• | debt securities owned by us or any other obligor upon the debt securities or by any affiliate of ours or of such other obligor shall be disregarded. |
• | there shall be no minimum quorum requirement for such meeting; and |
• | the principal amount of the outstanding debt securities of such series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under such indenture. |
• | either (1) all securities of such series have already been delivered to the applicable trustee for cancellation; or (2) all securities of such series have not already been delivered to the applicable trustee for cancellation but (a) have become due and payable, (b) will become due and payable within one year, or (c) if redeemable at our option, are to be redeemed within one year, and we have irrevocably deposited with the applicable trustee, in trust, funds in such currency or currencies, currency unit or units or composite currency or currencies in which such debt securities are payable, an amount sufficient to pay the entire indebtedness on such debt securities in respect of principal and any premium (or make-whole amount) and interest to the date of such deposit if such debt securities have become due and payable or, if they have not, to the stated maturity or redemption date; |
• | we have paid or caused to be paid all other sums payable; and |
• | we have delivered to the trustee an officers' certificate and an opinion of counsel stating that the conditions to discharging the debt securities have been satisfied. |
• | to defease and be discharged from any and all obligations with respect to such debt securities; or |
• | to be released from our obligations with respect to such debt securities under the applicable indenture or, if provided in the applicable prospectus supplement, our obligations with respect to any other covenant, and any omission to comply with such obligations shall not constitute an event of default with respect to such debt securities. |
• | direct obligations of the United States or the government that issued the foreign currency in which the debt securities of a particular series are payable, for the payment of which its full faith and credit is pledged; or |
• | obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States or other government that issued the foreign currency in which the debt securities of such series are payable, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or such other government, which are not callable or redeemable at the option of the issuer thereof and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such government obligation or a specific payment of interest on or principal of any such government obligation held by such custodian for the account of the holder of a depositary receipt. However, except as required by law, such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the government obligation or the specific payment of interest on or principal of the government obligation evidenced by such depositary receipt. |
• | a currency, currency unit or composite currency both by the government of the country that issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community; or |
• | any currency unit or composite currency for the purposes for which it was established. |
• | the payment or making of a dividend or distribution on our common stock exclusively in common stock or on any other class of capital stock, which dividend or distribution includes common stock of our company; |
• | the issuance to all holders of common stock of rights or warrants entitling holders to subscribe for or purchase shares of common stock at a price per share less than the current market price per share; |
• | subdivisions and combinations of common stock; and |
• | the distribution to all holders of common stock of: |
• | evidences of our indebtedness; |
• | shares of our capital stock other than common stock or assets other than cash dividends paid from current or retained earnings; or |
• | certain other subscription rights or warrants other than those referred to above. |
• | the designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities purchasable upon exercise of warrants to purchase debt securities and the price at which such debt securities may be purchased upon such exercise; |
• | the number of shares of common stock purchasable upon the exercise of warrants to purchase common stock and the price at which such number of shares of common stock may be purchased upon such exercise; |
• | the designation and number of units of other securities purchasable upon the exercise of warrants to purchase other securities and the price at which such number of units of such other securities may be purchased upon such exercise; |
• | the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
• | U.S. federal income tax consequences applicable to such warrants; |
• | the amount of warrants outstanding as of the most recent practicable date; and |
• | any other terms of such warrants. |
• | through underwriters or dealers; |
• | through agents; |
• | directly to purchasers; or |
• | through a combination of any of these methods of sale. |
• | their offering terms, including the name or names of any underwriters, dealers or agents; |
• | the purchase price of the securities and the net proceeds we may receive from the sale; |
• | any underwriting discounts, fees, commissions and other items constituting compensation to underwriters, dealers or agents; |
• | any initial public offering price; |
• | any discounts, commissions or concessions allowed or reallowed or paid by underwriters or dealers to other dealers; and |
• | any securities exchanges on which the securities may be listed. |
• | at a fixed price or prices which may be changed; |
• | at market prices prevailing at the time of sale; |
• | at prices related to such prevailing market prices; or |
• | at negotiated prices. |
Item 14. | Other Expenses of Issuance and Distribution |
SEC Registration Fee | | | $0* |
Legal Fees and Expenses** | | | |
Accounting Fees and Expenses** | | | |
Trustee Fees and Expenses** | | | |
Rating Agency Fees** | | | |
Stock Exchange Listing Fees** | | | |
Printing Fees and Expenses** | | | |
Miscellaneous** | | | |
| | ||
Total | | | $** |
* | Excludes the registration fee previously paid in connection with unsold securities pursuant to Rule 415(a)(6). |
** | Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement. |
Item 15. | Indemnification of Directors and Officers |
Item 16. | Exhibits |
1.1 | | | Underwriting Agreements(1) |
4.1 | | | Certificate of Incorporation(2)(P) |
| | Amended and Restated Bylaws(3) | |
| | Specimen certificate of common stock of the Company(4) | |
| | Form of Senior Indenture(5) | |
| | Form of Subordinated Indenture(6) | |
4.6 | | | Form of Debt Security(1) |
4.7 | | | Form of Depositary Agreement(1) |
4.8 | | | Form of Depositary Certificate(1) |
| | Opinion of Faegre Drinker Biddle & Reath LLP | |
| | Consent of Faegre Drinker Biddle & Reath LLP (included as part of Exhibit 5.1) | |
| | Consent of Grant Thornton LLP | |
| | Power of Attorney (included with signature pages) | |
25.1 | | | Statement of Eligibility of Trustee(1) |
| | Filing Fee Table |
(1) | To be subsequently filed by amendment or as an exhibit to a Current Report on Form 8-K |
(2) | Incorporated by reference to the registrant’s Proxy Statement filed for its 1994 Annual Meeting of Stockholders (P=Filed on paper) |
(3) | Incorporated by reference to Exhibit 11.14 of the registrant’s Form 10-Q for the quarter ended June 30, 2002 filed July 26, 2002 |
(4) | Incorporated by reference to Exhibit 4.3 of the registrant’s Registration Statement on Form S-3 (File No. 333-126519) filed July 11, 2005 |
(5) | Incorporated reference to Exhibit 4.4 of the registrant’s Registration Statement on Form S-3 (File No. 333-239723) filed July 7, 2020. |
(6) | Incorporated reference to Exhibit 4.5 of the registrant’s Registration Statement on Form S-3 (File No. 333-239723) filed July 7, 2020. |
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 of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in 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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(A) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to 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. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, 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 the 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. |
(c) | 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 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. |
(d) | The undersigned registrant hereby undertakes that: |
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(e) | The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
| | Century Casinos, Inc. | ||||
| | | | |||
| | By: | | | /s/ Erwin Haitzmann | |
| | | | Erwin Haitzmann, Chairman of the Board and Co Chief Executive Officer (Co-Principal Executive Officer) | ||
| | | | |||
| | By: | | | /s/ Peter Hoetzinger | |
| | | | Peter Hoetzinger, Vice Chairman of the Board, Co Chief Executive Officer and President (Co-Principal Executive Officer) |
Signature | | | Title | | | Date |
| | | | |||
/s/ Erwin Haitzmann | | | Chairman of the Board and Co Chief Executive Officer (Co-Principal Executive Officer) | | | June 6, 2023 |
Erwin Haitzmann | | |||||
| | | | |||
/s/ Peter Hoetzinger | | | Vice Chairman of the Board, Co Chief Executive Officer and President (Co-Principal Executive Officer) | | | June 6, 2023 |
Peter Hoetzinger | | |||||
| | | | |||
/s/ Margaret Stapleton | | | Chief Financial Officer | | | June 6, 2023 |
Margaret Stapleton | | |||||
| | | | |||
/s/ Timothy Wright | | | Chief Accounting Officer | | | June 6, 2023 |
Timothy Wright | | |||||
| | | | |||
/s/ Gottfried Schellmann | | | Director | | | June 6, 2023 |
Gottfried Schellmann | | |||||
| | | | |||
/s/ Eduard Berger | | | Director | | | June 6, 2023 |
Eduard Berger | | |||||
| | | | |||
/s/ Dinah Corbaci | | | Dinah Corbaci | | | June 6, 2023 |
Dinah Corbaci | |
Faegre Drinker Biddle & Reath LLP
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1144 15th Street, Suite 3400
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Denver, Colorado 80202
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+1 303 607 3500 main
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+1 303 607 3600 fax
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Re: |
Century Casinos, Inc. Registration Statement on Form S-3
|
(i) |
senior and subordinated debt securities (collectively, the “Debt Securities”), issuable directly or in exchange for other Debt Securities or upon exercise of Warrants (as defined below);
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(ii) |
preferred stock (the “Preferred Stock”) of the Company, issuable directly or in exchange for or upon conversion of other Preferred Stock or Debt Securities or upon exercise of Warrants;
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(iii) |
common stock (the “Common Stock”) of the Company, issuable directly or in exchange for or upon conversion of Debt Securities or Preferred Stock or upon exercise of Warrants;
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(iv) |
warrants to purchase Debt Securities, Preferred Stock, or Common Stock (collectively, the “Warrants”);
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(v) |
depositary certificates representing shares of Common Stock or fractions of a share of Common Stock (the “Depositary Certificates”); and
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(vi) |
units consisting of two or more of the foregoing (the “Units”).
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- 2 - |
June 6, 2023
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1. |
Upon (a) the completion of all required Corporate Proceedings relating to the issuance of the Common Stock, (b) the due execution, registration of issuance and delivery of certificates representing the Common Stock, (c) in the case of
Common Stock issuable in exchange for or upon conversion of Debt Securities or Preferred Stock or upon the exercise of Warrants or as components of Units, completion of the actions in respect of such Debt Securities, Preferred Stock, Warrants
or Units referred to in paragraphs 2, 3, 4 or 5 hereof (as the case may be), and (d) in the case of Common Stock represented by Depositary Certificates, completion of the actions in respect of such Depositary Certificates referred to in
paragraph 6 hereof, the Common Stock will be duly and validly issued, fully paid and non-assessable.
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2. |
Upon (a) the due authorization, execution, acknowledgment, delivery and filing by the Company with, and recording by, the Delaware Secretary of State of the applicable Certificate of Designations, (b) the completion of all required
Corporate Proceedings relating to the issuance and terms of the Preferred Stock, (c) the due execution, registration of issuance and delivery of certificates representing the Preferred Stock pursuant to such Certificate of Designations and
(d) in the case of Preferred Stock issuable in exchange for or upon conversion of other Preferred Stock or Debt Securities or upon the exercise of Warrants or as components of Units, completion of the actions in respect of such other
Preferred Stock, Debt Securities, Warrants or Units referred to in this paragraph 2 or in paragraphs 3, 4 or 5 hereof (as the case may be), the Preferred Stock will be duly and validly issued, fully paid and non-assessable.
|
3. |
Upon (a) the due authorization, execution and delivery of the Indenture by the Company, (b) the qualification of the Indenture under the Trust Indenture Act, (c) the completion of all required Corporate Proceedings relating to the issuance
and terms of the Debt Securities, (d) the due authorization, execution, authentication, registration of issuance and delivery of the Debt Securities, and (e) in the case of Debt Securities issuable as components of Units, completion of the
actions in respect of such Units referred to in paragraph 4 hereof, the Debt Securities will constitute valid and binding obligations of the Company.
|
|
- 3 - |
June 6, 2023
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4. |
Upon (a) the completion of all required Corporate Proceedings relating to the issuance and terms of the Units, (b) the due authorization, execution and delivery of the Unit Agreement pursuant to which such Units are to be issued, and the
due execution and delivery of the Units by the Company, (c) the due authorization, execution, registration of issuance and delivery of any certificates evidencing such Units against payment therefor in accordance with the terms of such Unit
Agreement and Units, and (d) deposit of the Securities underlying such Units with the applicable units agent, the Units will constitute valid and binding obligations of the Company.
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5. |
Upon (a) the completion of all required Corporate Proceedings relating to the issuance and terms of the Warrants, (b) the due authorization, execution and delivery of the Warrant Agreement pursuant to which the Warrants are to be issued,
(c) the due authorization, execution and delivery of the Warrants, (d) the due authentication of the Warrants by the Warrant Agent, and (e) in the case of Warrants issuable as a component of Units, completion of the actions in respect of such
Units referred to in paragraph 4 hereof, the Warrants will constitute valid and binding obligations of the Company.
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6. |
Upon (a) the completion of all required Corporate Proceedings relating to the issuance and terms of the Depositary Certificates, (b) the due authorization, execution and delivery of the Deposit Agreement pursuant to which the Depositary
Certificates are to be issued, (c) the due authorization, execution and delivery of the Depositary Certificates and (d) in the case of Depositary Certificates issuable as components of Units, completion of the actions in respect of such Units
referred to in paragraph 4 hereof, the Depositary Certificates will constitute valid and binding obligations of the Company.
|
|
- 4 - |
June 6, 2023
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|
- 5 - |
June 6, 2023
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Very truly yours,
|
||
FAEGRE DRINKER BIDDLE & REATH LLP
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||
By:
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/s/ Jeffrey A. Sherman
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Jeffrey A. Sherman
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||
Partner
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||
Security
Type
|
Security
Class
Title
|
Fee
Calculation
or Carry
Forward
Rule
|
Amount Registered(1)
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee
Rate
|
Amount
of
Registration
Fee
|
Carry
Forward
Form
Type
|
Carry Forward
File Number
|
Carry Forward Initial Effective Date
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward
|
|
Carry Forward Securities
|
||||||||||||
Carry Forward Securities
|
Equity
|
Common Stock, $0.01 par value per share
|
415(a)(6)
|
(3)
|
S-3
|
333-239723
|
July 23, 2020
|
|||||
Carry Forward Securities
|
Equity
|
Preferred Stock, $0.01 par value per share
|
415(a)(6)
|
(3)
|
S-3
|
333-239723
|
July 23, 2020
|
|||||
Fees to be Paid
|
Equity
|
Depositary Shares
|
415(a)(6)
|
(3)
|
S-3
|
333-239723
|
July 23, 2020
|
|||||
Carry Forward Securities
|
Debt
|
Debt
Securities
|
415(a)(6)
|
(3)
|
S-3
|
333-239723
|
July 23, 2020
|
|||||
Carry Forward Securities
|
Other
|
Warrants
|
415(a)(6)
|
(3)
|
S-3
|
333-239723
|
July 23, 2020
|
|||||
Carry Forward Securities
|
Other
|
Units(2)(3)
|
415(a)(6)
|
(3)
|
S-3
|
333-239723
|
July 23, 2020
|
|||||
Carry Forward Securities
|
Unallocated
(Universal)
Shelf
|
Unallocated
(Universal)
Shelf
|
415(a)(6)
|
(3)
|
$100,000,000.00
(3)
|
S-3
|
333-239723
|
July 23, 2020
|
$12,980
|
|||
Total Offering Amounts
|
$100,000,000.00
(1)(3)
|
0.00011020
|
$11,020
|
|||||||||
Total Fees Previously Paid
|
$12,980
|
|||||||||||
Total Fee Offsets
|
-
|
|||||||||||
Net Fee Due
|
$0
|
(1) |
An indeterminate amount of the securities of each identified class is being registered as may from time to time be offered under this registration statement at
indeterminate prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange, or conversion of securities offered or sold under this registration statement, as shall have an aggregate initial
offering price up to $100,000,000. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement also covers any additional securities that may be offered or issued in connection with
any stock split, stock dividend, or pursuant to anti-dilution provisions of any of the securities. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise, or exchange of other securities.
In addition, the total amount to be registered and the proposed maximum aggregate offering price are estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.
|
(2) |
Units may be issued under a unit agreement and will represent an interest in one or more securities registered under this registration statement including shares of
common stock or preferred stock, depositary shares, debt securities, or warrants, in any combination, which may or may not be separable from one another.
|
(3) |
Pursuant to Rule 415(a)(6 )under the Securities Act, the securities registered pursuant to this registration statement include $100,000,000.00 of unsold securities (the
"Unsold Securities") previously registered pursuant to the Registration Statement on Form S-3 (File No. 333-239723), which was declared effective on July 23, 2020 (the "Prior Registration Statement"). In connection with the filing of the
Prior Registration Statement, the registrant paid a filing fee of $12,980 associated with the offering of the Unsold Securities (based on the filing fee rate in effect at the time of the filing of the Prior Registration Statement). The filing
fee associated with the offering of the Unsold Securities is hereby carried forward to be applied to the Unsold Securities registered hereunder, and no additional filing fee is due with respect to the Unsold Securities in connection with the
filing of this Registration Statement. To the extent that, after the filing date hereof and prior to the effectiveness of this registration statement, the registrant sells any Unsold Securities pursuant to the Prior Registration Statement,
the registrant will identify in a pre-effective amendment to this registration statement the updated number of Unsold Securities from the Prior Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6)and
the updated amount of new securities to be registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of
this registration statement.
|
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