As
filed with the Securities and Exchange Commission on May 5, 2020
Registration
No. 333-________
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
Registration Statement Under the Securities Act of 1933
General
Moly, Inc.
(Exact name of registrant as specified in its charter)
Delaware
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91-0232000
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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1726 Cole Blvd., Suite 115
Lakewood, CO 80401
(303) 928-8599
(Address of Principal Executive Offices)
(Zip Code)
R. Scott Roswell, Chief Legal Officer
General Moly, Inc.
1726 Cole Blvd., Suite 115
Lakewood, CO 80401
(303) 928-8599
(Name, address, including zip code and
telephone number, including area code, of agent for service)
With copies to:
Charles D. Maguire, Esq.
Todd M. Kaye, Esq.
Bryan Cave Leighton Paisner LLP
1700 Lincoln Street, Suite 4100
Denver, Colorado 80203
(303)
861-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED
SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement.
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,
please check the following box. x
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of 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, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated
filer ¨
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Accelerated filer ¨
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Non-accelerated
filer x
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Smaller
reporting company x
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Emerging growth company ¨
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If an emerging growth company, 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 Securities Act. ¨
CALCULATION
OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount to be
Registered
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Proposed Maximum Offering Price Per Unit
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Proposed Maximum
Aggregate Offering Price
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Amount of
Registration Fee
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Primary
Offering:
Common Stock, $0.001 par value
Preferred Stock, $0.001 par value
Debt Securities
Warrants
Units
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$400,000,000 (1)
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(1)
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$400,000,000.00 (1)(2)
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$51,920.00 (3)
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Secondary
Offering:
Common Stock, $0.001 par value
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127,635,048 shares (4)
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$0.19 (2)
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$24,250,659.12 (2)
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$3,147.74 (3)
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Total:
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$424,250,659.12 (2)
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$55,067.74 (3)
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(1)
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In the primary offering, there is being registered such indeterminate number or amount of common stock, preferred stock, debt
securities, warrants and units as may from time to time be sold at indeterminate prices and as shall have an aggregate initial
offering price not to exceed $400,000,000. This Registration Statement also includes such indeterminate amount of common stock,
preferred stock and debt securities as may be resold from time to time upon exercise of warrants or conversion of convertible securities
being registered hereunder or pursuant to the antidilution provisions of any such securities. In addition, pursuant to Rule 416
under the Securities Act, the securities being registered hereunder include such indeterminate number of shares of common stock
and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock
dividends or similar transactions.
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(2)
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With respect to securities to be offered for sale by the Registrant in the primary offering, the proposed maximum aggregate
offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). With
respect to shares of the Registrant’s common stock to be offered for resale by the selling stockholders in the secondary
offering, the proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) based on the average of the high and low prices reported for the Registrant’s common
stock traded on the NYSE American on April 30, 2020.
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(3)
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Pursuant to Rule 457(p), the Registrant is offsetting an aggregate of $55,366.85 in registration fees that was previously
paid with respect to securities that were registered on a Registration Statement on Form S-3 (SEC File No. 333-217267),
filed by the Registrant on April 12, 2017, which securities were not sold thereunder. Accordingly, no additional filing fee
is being paid herewith.
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(4)
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In the secondary offering, there is being registered an aggregate of 127,635,048 shares of common stock of the Registrant to
be offered for resale by certain selling stockholders identified in this Registration Statement and related prospectus, including
88,556,458 shares issuable upon exercise of outstanding warrants held by selling stockholders. Pursuant to Rule 416, the securities
being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares
being registered hereunder as a result of stock splits, stock dividends or similar transactions or pursuant to any antidilution
provisions of the warrants.
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The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
Subject to completion, dated May 5, 2020
The information in this prospectus is not complete
and may be changed. Neither we nor any selling stockholder may sell these securities pursuant to this prospectus until the registration
statement filed with the Securities and Exchange Commission becomes effective. This prospectus is not an offer to sell these securities
and neither we nor any selling stockholder is soliciting offers to buy these securities in any state where the offer or sale is
not permitted.
$400,000,000
Common Stock, Preferred Stock, Debt Securities, Warrants and Units
127,635,048 Shares of Common Stock Offered
by the Selling Stockholders
We may from time to time offer to sell common
stock, preferred stock, debt securities, warrants or units, in one or more transactions, with a maximum aggregate offering price
of $400,000,000. In addition, the selling stockholders identified in this prospectus under the heading “Selling Stockholders,”
or their transferees, pledgees, donees or other successors, may sell up to an aggregate of 127,635,048 shares of our common stock,
including up to 88,556,458 shares issuable upon the exercise of currently outstanding warrants, from time to time under this prospectus
and any prospectus supplement. Under the terms of the agreements that we have entered into with the selling stockholders executed
in connection with the issuance of the shares and warrants to them, we are required to register the resale of the shares of our
common stock issued to the selling stockholders, including shares underlying the warrants. We will not receive any proceeds from
the sale of our common stock by the selling stockholders.
This prospectus provides you with a general
description of the securities we or the selling stockholders may offer. Each time we or selling stockholders sell securities pursuant
to this prospectus, we will provide specific information about the offering and the specific terms of the securities offered in
a supplement to this prospectus (which may include, but is not limited to, an at-the-market offering agreement prospectus). You
should read this prospectus and the applicable prospectus supplement carefully before you invest in our securities.
Our common stock is listed on the NYSE American
and Toronto Stock Exchange under the symbol “GMO.” On May 4, 2020, the closing price of our common stock on the
NYSE American was $0.21 per share and the closing price on the Toronto Stock Exchange was C$0.28. The applicable prospectus supplement
will contain information as to any other listing on the NYSE American, Toronto Stock Exchange, or any other securities market or
exchange of the securities covered by the prospectus supplement.
Pursuant to General Instruction I.B.6 of
Form S-3, in no event will we sell shares of our common stock in a public primary offering with a value exceeding more than
one-third of our public float in any 12-month period so long as our public float held by non-affiliates remains below $75 million.
As of April 29, 2020, the aggregate market value of our outstanding common stock held by non-affiliates, or the public float,
was $19,005,966, based upon 95,029,832 shares of our outstanding stock held by non-affiliates at the per share price of $0.20,
the closing sale price of our common stock on April 29, 2020. One-third of our public float, calculated in accordance with
General Instruction I.B.6 of Form S-3 as of April 29, 2020 is equal to $6,335,322. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar months prior to and including the date of this prospectus.
The offered shares may be sold from time
to time at then prevailing market prices, prices relating to prevailing market prices, or negotiated prices. Such transactions
may take place on the NYSE American or the Toronto Stock Exchange, in the over-the-counter market, or otherwise. The securities
may be sold directly to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous
or delayed basis. If any agents or underwriters are involved in the sale of any of these securities, the applicable prospectus
supplement will provide the names of the agents or underwriters and any applicable fees, commissions or discounts.
Investing in our securities involves
a high degree of risk. See the “Risk Factors” section of our filings with the Securities and Exchange Commission (the
“SEC”) and the applicable prospectus supplement.
Neither the SEC nor any state securities
commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is
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,2020.
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You should rely only on the information
contained or incorporated by reference in this prospectus and in any supplement to this prospectus. Neither we nor the selling
stockholders have authorized any other person to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. You should assume that the information appearing in this prospectus and
any accompanying prospectus supplement is accurate as of the date on their respective covers. Our business, financial condition,
results of operations and prospects may have changed since that date.
About
This Prospectus
This prospectus is part of a registration
statement we filed with the SEC using a “shelf” registration process. Under this registration statement, we may sell
up to a total of $400,000,000 of any combination of the securities described in this prospectus from time to time in one or more
offerings and the selling stockholders may, from time to time, sell up to an aggregate of 127,635,048 shares of common stock, including
up to 88,556,458 shares of common stock issuable upon exercise of outstanding warrants, in one or more offerings. The types of
securities that we may offer and sell from time to time pursuant to this prospectus are:
In addition, the selling stockholders may
offer and sell shares of our common stock pursuant to this prospectus, including shares of common stock issuable upon exercise
of currently outstanding warrants.
This prospectus provides you with a general
description of the securities we or the selling stockholders may offer. This prospectus does not contain all the information set
forth in the registration statement as permitted by the rules of the SEC. Each time we or selling stockholders sell securities
pursuant to this prospectus, we will describe in a prospectus supplement, which we or the selling stockholders, as applicable,
will deliver with this prospectus, specific information about the offering and the terms of the particular securities offered.
In each prospectus supplement we will include the following information, if applicable:
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the type and amount of securities that we or the selling stockholders propose to sell;
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the initial public offering price of the securities;
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the names of the selling stockholders, if applicable;
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the names of any underwriters or agents through or to which we or the selling stockholders will sell the securities;
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any compensation of those underwriters or agents; and
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information about any securities exchanges or automated quotation systems on which the securities will be listed or traded.
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In addition, the prospectus supplement may
also add, update or change the information contained in this prospectus.
Wherever references are made in this prospectus
to information that will be included in a prospectus supplement, to the extent permitted by applicable law, rules or regulations,
we may instead include such information or add, update or change the information contained in this prospectus by means of a post-effective
amendment to the registration statement of which this prospectus is a part, through filings we make with the SEC that are incorporated
by reference into this prospectus or by any other method as may then be permitted under applicable law, rules or regulations.
Forward-Looking
Statements
Certain statements contained or incorporated
by reference in this prospectus may constitute forward-looking statements, which involve known and unknown risks, uncertainties
and other factors, which may cause actual results, performance or achievements of our Company, the Mt. Hope Project 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 our Annual Report on Form 10-K for the year ended December 31, 2019, and subsequently filed Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K, and any amendments to those filings, and include, among other things:
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Our ability to raise additional capital and to meet our financial obligations past third quarter 2020, which may force us to
cease all operations, in which event investors may lose their entire investment in our Company;
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Our ability to work cooperatively with POS-Minerals to extend repayment of the Return of Contribution under the LLC Agreement,
currently valued at $33.6 million;
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Our ability to obtain project financing for the development and construction of the Mt. Hope Project;
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The ability to obtain and maintain all permits, including the new ROD, water rights, and approvals for the Mt. Hope Project
and the Liberty Project, and potential development of the copper-silver target and zinc mineralization;
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Our dependence on the success of the Mt. Hope Project;
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Our ability to access up to a $700 million bank loan with or without the reasonable best efforts of Amer or meet conditions
under the molybdenum supply agreements;
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Issues related to the management of the Mt. Hope Project pursuant to the LLC Agreement;
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Risks related to the failure of POS-Minerals to make ongoing cash contributions pursuant to the LLC Agreement;
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Public health threats could have a material adverse effect on our business and results of operations.
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Fluctuations in the market price of, demand for, and supply of molybdenum and other metals;
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The estimation and realization of mineral reserves and production estimates, if any;
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The timing of exploration, development and production activities and estimated future production, if any;
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Estimates related to costs of production, capital, operating and exploration expenditures;
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Requirements for additional capital and our ability to obtain additional capital in a timely manner and on acceptable terms;
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Our ability to renegotiate, restructure, suspend, cancel or extend payment terms of contracts as necessary or appropriate in
order to conserve cash;
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Government regulation of mining operations, environmental conditions and risks, reclamation and rehabilitation expenses;
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Title disputes or claims;
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Limitations of and access to certain insurance coverage;
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The future price of molybdenum, copper or other metals; and
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Ability to retain key employees and staff.
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You should not place undue reliance on these
forward-looking statements, which speak only as of the date of this prospectus. These forward-looking statements are based on our
current expectations and are subject to a number of risks and uncertainties, including those set forth above. Although we believe
that the expectations reflected in these forward-looking statements are reasonable, our actual results could differ materially
from those expressed in these forward-looking statements, and any events anticipated in the forward-looking statements may not
actually occur. Except as required by law, we undertake no duty to update any forward-looking statements after the date of this
prospectus to conform those statements to actual results or to reflect the occurrence of unanticipated events. We qualify all forward-looking
statements contained or incorporated by reference in this prospectus by the foregoing cautionary statements.
The
Company
References made in this prospectus to “we,”
“our,” “us,” and the “Company” refer to General Moly, Inc. and its consolidated subsidiary
Eureka Moly, LLC (“LLC”).
We are in the business of the exploration,
development and mining of properties primarily containing molybdenum. Our main asset is an 80% interest in the Mt. Hope Project
(“Mt. Hope Project”), a primary molybdenum property, located in Eureka County, Nevada. In 2006, we acquired a second
significant molybdenum and copper project, the Liberty Project (“Liberty Project”), located in Nye County, Nevada,
which we wholly own. The Liberty Project is anticipated to become our second molybdenum and copper operation, after commencement
of commercial production at the Mt. Hope Project, with initial production dependent on market conditions.
Our corporate strategy has been to acquire
and develop highly profitable advanced stage mineral deposits. Our corporate objective is to profitably develop and operate the
Mt. Hope Project and to complete our evaluation and commence development of the Liberty Project. Presently, we are focused on obtaining
financing required to maintain the continuing operations of the Company and to work toward financing to jointly develop the Mt.
Hope Project with our LLC joint-venture partner, while at the same time conserving our cash resources until such financing is received.
We believe we have the following business
strengths that will enable us to achieve our objectives:
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We have retained a strong, proven management team with experience in mine development, project financing, and operations.
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The Mt. Hope Project is anticipated to be one of the largest and lowest cost primary molybdenum projects in the world, driven,
in part, by high ore grades that will be processed early in the mine life.
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Our Liberty Project has the potential to become a second, significant, molybdenum and copper operation and is wholly-owned
by the Company and royalty-free.
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The Mt. Hope Project and the Liberty Project are located in Nevada, which has a long and ongoing history of large-scale, open
pit mining operations.
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Both the Mt. Hope Project and the Liberty Project have near-by infrastructure for labor, power, access roads, and water and
have an environmentally sound design.
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We have historically had strong international support from the steel industry as evidenced by the strategic partnerships and
off-take agreements we have in place with several of the world’s largest steel companies.
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We are observing the potential for improving long-term market fundamentals for molybdenum based on strengthening global industrial
growth and steel demand, and tightening molybdenum supply.
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When the Mt. Hope Project is developed,
the LLC expects production of 40 million pounds of molybdenum (“Mo”) per year over the first five years on average,
and approximately 1.2 billion pounds of molybdenum over the expected 41-year life of the project (based on a $12/lb Mo reserve).
Using the $8/lb Mo reserve referenced later in this report, life of mine production declines to approximately 0.5 billion pounds
of molybdenum. The Mt. Hope Project will primarily focus on producing Technical Grade Molybdenum Oxide (“TMO”), which
is widely utilized by the steel industry. In the future, we may also consider producing ferromolybdenum (“FeMo”), which
is also used by the steel industry and would make the Company an integrated supplier to the steel industry and have left space
in the process plant design for the Mt. Hope Project to accommodate this process.
There is no assurance that we will be successful
in raising the financing required to complete the development of the Mt. Hope Project, or in raising additional financing in the
future on terms acceptable to us, or at all. Further, we do not have an estimated timeframe for finalizing any financing agreements.
Potential funding sources include public or private equity offerings, arranging for use of restricted cash, or sale of non-core
assets owned by the Company. There is no assurance that we will be successful in securing additional funding. This could result
in further cost reductions, contract cancellations, and potential delays which ultimately may jeopardize the development of the
Mt. Hope Project.
We were initially incorporated in Idaho
under the name “General Mines Corporation” in 1925. We have gone through several name changes and on October 5,
2007, we reincorporated the Company in the State of Delaware through a merger of Idaho General Mines, Inc. with and into General
Moly, Inc., a Delaware corporation that was a wholly-owned subsidiary of Idaho General Mines, Inc. with General Moly
being the surviving entity. For purposes of the Company’s reporting status with the SEC, General Moly, Inc. is deemed
a successor to Idaho General Mines, Inc. Our common stock is traded on the NYSE American under the symbol “GMO”
and, in February 2008, the Company began trading on the Toronto Stock Exchange under the same symbol. Our registered and principal
executive office is located at 1726 Cole Blvd., Suite 115, Lakewood, Colorado 80401 and the phone number for that office is
(303) 928-8599.
We maintain a website at www.generalmoly.com,
on which we post free of charge our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on
Form 8-K, Extensible Business Reporting Language (“XBRL”) documents, and any amendments to these reports under
the heading “Investors” as soon as reasonably practicable after we electronically file such material with, or furnish
it to, the SEC. We also routinely post important information about the Company on our website under the heading “Investors.”
We do not incorporate the information on our website into this prospectus and you should not consider any information on, or that
can be accessed through, our website as part of this prospectus. The SEC also maintains a website that contains our reports and
other information at www.sec.gov.
Risk
Factors
Before you invest in any of our securities,
in addition to the other information in this prospectus and the applicable prospectus supplement, you should carefully consider
the risk factors under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on May 4, 2020, which are incorporated by reference into this prospectus and the applicable prospectus
supplement, as the same may be updated from time to time by our future filings under the Exchange Act.
Our business, financial position, results
of operations, liquidity or prospects could be adversely affected by any of these risks.
Use
of Proceeds
We intend to use the net proceeds we receive
from the sale of securities by us as set forth in the applicable prospectus supplement. Unless otherwise specified in the applicable
prospectus supplement, we will not receive any proceeds from the sale of securities by selling stockholders.
Dividend
Policy
We have never declared or paid dividends
on our common stock and we do not anticipate paying any dividends on our common stock in the foreseeable future. We will pay dividends
on our common stock only if and when declared by our board of directors. Our board’s ability to declare a dividend is subject
to limits imposed by Delaware corporate law. In determining whether to declare dividends, the board will consider these limits,
our financial condition, results of operations, working capital requirements, future prospects and other factors it considers relevant.
Description
of Capital Stock
Our authorized share capital consists of
650,000,000 shares of common stock, $0.001 par value, and 10,000,000 shares of preferred stock, $0.001 par value, of which 55,000
shares have been designated as Series A Convertible Preferred Stock and 5,000 shares have been designated as Series B
Preferred Stock. As of April 30, 2020, there were 152,685,255
shares of common stock outstanding, 9,000 shares of Series A Convertible Preferred Stock outstanding and 4,000 shares of Series B
Preferred Stock 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 on October 10, 2007, including all amendments or reports filed for the purpose of updating
such descriptions, 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
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, 2020,
we have designated 55,000 shares as Series A Convertible Preferred Stock and 5,000 shares as Series B Preferred Stock.
Each share of Series A Convertible
Preferred Stock is convertible at any time at the holder’s discretion into shares of our common stock at a price of $0.27/common
share, or 370.37 common shares. The conversion price was set as the closing price of the common stock on March 12, 2019, which
was the day before announcement of the initial private placement in which shares of Series A Convertible Preferred Stock were
issued. The Series A Convertible Preferred Stock carries a 5% annual dividend, which may be paid, in the Company’s sole
discretion, in cash, additional shares or a combination thereof. The Series A Convertible Preferred Stock votes together with
the Company’s common stock as a single class on an as-converted basis. The Series A Convertible Preferred Stock is mandatorily
redeemable at such time that the Company’s senior promissory notes issued in December 2014 (the “2014 Notes”)
become due and payable in accordance with their terms, as such terms may be modified from time to time. In December 2019,
approximately 95% of the 2014 Notes were exchanged for new senior promissory notes that mature in December 2022 (the “2019
Notes”), and the Company and the holders of the Series A Convertible Preferred Stock have agreed that this exchange
constitutes a modification of the 2014 Notes that extends the mandatory redemption of the Series A Convertible Preferred Stock
until the 2019 Notes became due and payable in accordance with their terms, as such terms may be modified from time to time.
Each share of the Series B Preferred
Stock is convertible at any time at the holder’s discretion into 500 shares of our common stock. The Series B Preferred
Stock carries a 5% annual dividend, which may be paid, in the Company’s sole discretion, in cash, additional shares of Series B
Preferred Stock or a combination thereof. The Series B Preferred Stock votes together with the Company’s common stock
as a single class on an as-converted basis. The Series B Convertible Preferred Stock is mandatorily redeemable at such time
that the 2014 Notes become due and payable in accordance with their terms, as such terms may be modified from time to time, and
the Company and the holders of the Series B Convertible Preferred Stock have agreed that the December 2019 exchange of
2014 Notes for 2019 Notes constitutes a modification of the 2014 Notes that extends the mandatory redemption of the Series B
Convertible Preferred Stock until the 2019 Notes became due and payable in accordance with their terms, as such terms may be modified
from time to time.
We may issue additional shares of our preferred
stock from time to time, in one or more series. 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 may issue in the future
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 to be offered under this prospectus. This description of the preferred stock in the certificate of designation and any applicable
prospectus supplement will include:
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the title and stated value;
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the number of shares being offered;
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the liquidation preference per share;
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the purchase price per share;
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the currency for which the shares may be purchased;
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the dividend rate per share, dividend period and payment dates and method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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our right, if any, to defer payment of dividends and the maximum length of any such deferral period;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption
and repurchase rights;
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any listing of the preferred stock on any securities exchange or market;
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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;
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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;
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voting rights, if any, of the preferred stock;
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preemption rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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a discussion of any material or special United States federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
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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
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any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock.
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When we issue shares of preferred stock,
the shares will be fully paid and non-assessable and will not have, or be subject to, any preemptive or similar rights.
Certain Anti-Takeover Effects of Delaware Law and Provisions
of Our Certificate of Incorporation and Bylaws
Our certificate of incorporation and bylaws
and the Delaware General Corporation Law contain provisions that may have the effect of delaying, deferring or preventing a change
of control of the company. These provisions, among other things:
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provide for staggering the terms of directors by dividing the total number of directors into three groups;
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authorize our board of directors to set the terms of preferred stock;
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restrict our ability to engage in transactions with stockholders with 15% or more of outstanding voting stock;
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authorize the calling of special meetings of stockholders only by the board of directors, not by the stockholders;
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limit the business transacted at any meeting of stockholders to those purposes specifically stated in the notice of the meeting;
and
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prohibit stockholder action by written consent without a meeting and provide that directors may be removed only at a meeting
of stockholders.
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Because of these provisions, persons considering
unsolicited tender offers or other unilateral takeover proposals may be more likely to negotiate with our board of directors rather
than pursue non-negotiated takeover attempts. As a result, these provisions may make it more difficult for our stockholders to
benefit from transactions that are opposed by an incumbent board of directors.
Warrants
As of April 30, 2020, we had outstanding
warrants to purchase 89,556,458 shares of common stock. 8,556,458 are exercisable at $0.35 per share at any time through their
expiration on December 26, 2022; 1,000,000 are exercisable at $5.00 per share once General Moly has received financing necessary
for the commencement of commercial production at the Mt. Hope Project and will expire one year thereafter; and upon receipt of
up to $700 million in Chinese bank financing, up to 80,000,000 are exercisable at $0.50 per share at any time through their expiration
on September 27, 2027.
Description
of Debt Securities
The following descriptions of the debt securities
do not purport to be complete and are subject to and qualified in their entirety by reference to the indenture, a form of which
has been filed with the SEC as an exhibit to the registration statement of which this prospectus is a part. Any future supplemental
indenture or similar document also will be so filed. You should read the indenture and any supplemental indenture or similar document
because they, and not this description, define your rights as holder of our debt securities. All capitalized terms have the meanings
specified in the indenture.
As used in this prospectus, debt securities
means the debentures, notes, bonds and other evidences of indebtedness that we may issue separately or upon exercise of a debt
warrant from time to time. The debt securities may either be senior debt securities or subordinated debt securities. The debt securities
we offer will be issued under an indenture to be entered into between us and a trustee to be named therein. Unless otherwise specified
in the applicable prospectus supplement, The Bank of New York Mellon Trust Company, N.A., as the trustee. Debt securities, whether
senior or subordinated, may be issued as convertible debt securities or exchangeable debt securities.
As used in this “Description of Debt
Securities,” the terms “the Company,” “we,” “our,” and “us” refer to General
Moly, Inc., a Delaware corporation, and do not, unless otherwise specified, include our subsidiaries.
General Terms of the Indenture
The debt securities will be our direct unsecured
obligations. The senior debt securities will rank equally with all of our other senior unsecured and unsubordinated debt. The subordinated
debt securities will be subordinate and junior in right of payment to all of our present and future senior indebtedness to the
extent and in the manner described in the prospectus supplement and, if applicable, in a pricing supplement, and as set forth in
the supplemental indenture, board resolution or officers’ certificate relating to such offering.
The indenture does not limit the amount
of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize
and may be in any currency or currency unit designated by us. Except for the limitations on consolidation, merger and sale of all
or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other
provisions designed to afford holders of any debt securities protection with respect to our operations, financial condition or
transactions involving us.
We may issue the debt securities issued
under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal
amount. These debt securities, as well as other debt securities that are not issued at a discount may, for U.S. federal income
tax purposes, be treated as if they were issued with “original issue discount,” or “OID,” because of interest
payment and other characteristics. Special U.S. federal income tax considerations applicable to debt securities issued with original
issue discount will be described in more detail in any applicable prospectus supplement or pricing supplement, if any.
The applicable prospectus supplement for
a series of debt securities that we issue, together with a pricing supplement, if any, will describe, among other things, the following
terms of the offered debt securities:
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the aggregate principal amount;
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whether issued in fully registered form without coupons or in a form registered as to principal only with coupons or in bearer
form with coupons;
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whether issued in the form of one or more global securities and whether all or a portion of the principal amount of the debt
securities is represented thereby;
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the price or prices at which the debt securities will be issued;
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the date or dates on which principal is payable;
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the place or places where and the manner in which principal, premium or interest will be payable and the place or places where
the debt securities may be presented for transfer and, if applicable, conversion or exchange;
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interest rates, and the dates from which interest, if any, will accrue, and the dates when interest is payable;
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the right, if any, to extend the interest payment periods and the duration of the extensions;
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our rights or obligations to redeem or purchase the debt securities, including sinking fund or partial redemption payments;
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conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto;
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the currency or currencies of payment of principal or interest;
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the terms applicable to any debt securities issued at a discount from their stated principal amount;
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the terms, if any, pursuant to which any debt securities will be subordinate to any of our other debt;
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if the amount of payments of principal or interest is to be determined by reference to an index or formula, or based on a coin
or currency other than that in which the debt securities are stated to be payable, the manner in which these amounts are determined
and the calculation agent, if any, with respect thereto;
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if other than the entire principal amount of the debt securities when issued, the portion of the principal amount payable upon
acceleration of maturity as a result of a default on our obligations;
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whether the debt securities of the series will be secured or guaranteed and, if so, on what terms;
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any provisions for the remarketing of the debt securities;
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if applicable, covenants affording holders of debt protection with respect to our operations, financial condition or transactions
involving us; and
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any other specific terms of any debt securities.
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The applicable prospectus supplement or
pricing supplement, if any, will set forth certain U.S. federal income tax considerations for holders of any debt securities and
the securities exchange or quotation system on which any debt securities are listed or quoted, if any.
Debt securities issued by us will be structurally
subordinated to all indebtedness and other liabilities of our subsidiaries.
Unless otherwise provided in the applicable
prospectus supplement, all securities of any one series need not be issued at the same time and may be issued from time to time
without consent of any holder.
Subordination
The prospectus supplement or pricing supplement,
if any, relating to any offering of subordinated debt securities will describe the specific subordination provisions, including
the extent of subordination of payments by us of the principal of, premium, if any, and interest on such subordinated debt securities.
Conversion or Exchange Rights
Debt securities may be convertible into
or exchangeable for our other securities or property. The terms and conditions of conversion or exchange will be set forth in the
applicable prospectus supplement or pricing supplement, if any. The terms will include, among others, the following:
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the conversion or exchange price;
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the conversion or exchange period;
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provisions regarding the ability of us or the holder to convert or exchange the debt securities;
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events requiring adjustment to the conversion or exchange price; and
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provisions affecting conversion or exchange in the event of our redemption of the debt securities.
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Consolidation, Merger or Sale
We cannot consolidate or merge with or into,
or transfer or lease all or substantially all of our assets to, any person unless: (1) we will be the continuing corporation;
or (2) the successor corporation or person to which our assets are transferred or leased is a corporation organized under
the laws of the United States, any state of the United States or the District of Columbia and it expressly assumes our obligations
on the debt securities and under the indenture. In addition, we cannot effect such a transaction unless immediately after giving
effect to such transaction, no default or event of default under the indenture shall have occurred and be continuing. Subject to
certain exceptions, when the person to whom our assets are transferred or leased has assumed our obligations under the debt securities
and the indenture, we shall be discharged from all our obligations under the debt securities and the indenture, except in limited
circumstances.
This covenant would not apply to any recapitalization
transaction, a change of control of us or a highly leveraged transaction, unless the transaction or change of control were structured
to include a merger or consolidation or transfer or lease of all or substantially all of our assets.
Events of Default
Unless otherwise indicated, the term “Event
of Default,” when used in the indenture, means any of the following:
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failure to pay interest for 30 days after the date payment is due and payable; provided that, an extension of an interest payment
period in accordance with the terms of the debt securities shall not constitute a failure to pay interest;
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failure to pay principal or premium, if any, on any debt security when due, either at maturity, upon any redemption, by declaration
or otherwise;
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failure to make sinking fund payments when due;
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failure to perform any other covenant for 90 days after notice that performance was required;
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certain events relating to bankruptcy, insolvency or reorganization; or
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any other Event of Default provided in the applicable resolution of our board of directors or the officers’ certificate
or supplemental indenture under which we issue series of debt securities.
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An Event of Default for a particular series
of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the
indenture. If an Event of Default relating to the payment of interest, principal or any sinking fund installment involving any
series of debt securities has occurred and is continuing, the trustee or the holders of not less than 25% in aggregate principal
amount of the debt securities of each affected series may declare the entire principal of all the debt securities of that series
to be due and payable immediately.
If an Event of Default relating to the performance
of other covenants occurs and is continuing for a period of 90 days after notice of such, or if any other Event of Default occurs
and is continuing involving all of the series of senior debt securities, then the trustee or the holders of not less than 25% in
aggregate principal amount of all of the series of senior debt securities may declare the entire principal amount of all of the
series of senior debt securities due and payable immediately.
Similarly, if an Event of Default relating
to the performance of other covenants occurs and is continuing for a period of 90 days after notice of such, or if any other Event
of Default occurs and is continuing involving all of the series of subordinated debt securities, then the trustee or the holders
of not less than 25% in aggregate principal amount of all of the series of subordinated debt securities may declare the entire
principal amount of all of the series of subordinated debt securities due and payable immediately.
If, however, the Event of Default relating
to the performance of other covenants or any other Event of Default that has occurred and is continuing is for less than all of
the series of senior debt securities or subordinated debt securities, as the case may be, then, the trustee or the holders of not
less than 25% in aggregate principal amount of each affected series of the senior debt securities or the subordinated debt securities,
as the case may be, may declare the entire principal amount of all debt securities of such affected series due and payable immediately.
The holders of not less than a majority in aggregate principal amount of the debt securities of a series may, after satisfying
conditions, rescind and annul any of the above-described declarations and consequences involving the series.
If an Event of Default relating to events
in bankruptcy, insolvency or reorganization occurs and is continuing, then the principal amount of all of the debt securities outstanding,
and any accrued interest, will automatically become due and payable immediately, without any declaration or other act by the trustee
or any holder.
The indenture provides that the trustee
shall, with respect to a particular series of debt securities, give the holders of the debt securities of such series notice of
the occurrence of a default known to the Trustee within 90 days after the occurrence thereof; provided that, except in the case
of a default or Event of Default in payment of the principal, premium, if any, of, or interest on, any debt security of such series
or in the payment of any redemption obligation, the trustee may withhold the notice if, and so long as, it in good faith determines
that withholding the notice is in the interests of the holders of debt securities of that series.
The indenture imposes limitations on suits
brought by holders of debt securities against us. Except as provided below, no holder of debt securities of any series may institute
any action against us under the indenture unless:
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the holder has previously given to the trustee written notice of default and continuance of that default;
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the holders of at least 25% in principal amount of the outstanding debt securities of the affected series have requested that
the trustee institute the action;
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the requesting holders have offered the trustee reasonable security or indemnity satisfactory to it for expenses and liabilities
that may be incurred by bringing the action;
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the trustee has not instituted the action within 60 days of the request; and
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the trustee has not received inconsistent direction by the holders of a majority in principal amount of the outstanding debt
securities of the series.
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Notwithstanding the foregoing, each holder
of debt securities of any series has the right, which is absolute and unconditional, to receive payment of the principal of and
premium and interest, if any, on such debt securities when due and to institute suit for the enforcement of any such payment, and
such rights may not be impaired without the consent of that holder of debt securities.
We will be required to file annually with
the trustee a certificate, signed by one of our officers, stating whether or not the officer knows of any default by us in compliance
with any condition or covenant of the indenture.
Registered Global Securities
We may issue the debt securities of a series
in whole or in part in the form of one or more fully registered global securities that we will deposit with a depositary or with
a nominee for a depositary identified in the applicable prospectus supplement or pricing supplement, if any, and registered in
the name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an
amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such
registered global security or securities.
Unless and until it is exchanged in whole
or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
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by the depositary for such registered global security to its nominee;
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by a nominee of the depositary to the depositary or another nominee of the depositary; or
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by the depositary or its nominee to a successor of the depositary or a nominee of the successor.
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The prospectus supplement or pricing supplement,
if any, relating to a series of debt securities will describe the specific terms of the depositary arrangement with respect to
any portion of such series represented by a registered global security. We anticipate that the following provisions will apply
to all depositary arrangements for debt securities:
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ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary
for the registered global security, those persons being referred to as “participants,” or persons that may hold interests
through participants;
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upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry
registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities
represented by the registered global security beneficially owned by the participants;
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any dealers, underwriters, or agents participating in the distribution of the debt securities will designate the accounts to
be credited; and
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ownership of any beneficial interest in the registered global security will be shown on, and the transfer of any ownership
interest will be effected only through, records maintained by the depositary for the registered global security (with respect to
interests of participants) and on the records of participants (with respect to interests of persons holding through participants).
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The laws of some states may require that
certain purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability
of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered
global security, or its nominee, is the registered owner of the registered global security, the depositary or the nominee, as the
case may be, will be considered the sole owner or holder of the debt securities represented by the registered global security for
all purposes under the indenture. Except as set forth below, owners of beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and
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will not be considered the owners or holders of the debt securities under the indenture.
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Accordingly, each person owning a beneficial
interest in a registered global security must rely on the procedures of the depositary for the registered global security and,
if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise
any rights of a holder under the indenture.
We understand that under existing industry
practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires
to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global
security would authorize the participants holding the relevant beneficial interests to give or take the action, and those participants
would authorize beneficial owners owning through those participants to give or take the action or would otherwise act upon the
instructions of beneficial owners holding through them.
We will make payments of principal and premium,
if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary
or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security.
None of the Company, the trustee or any other agent of the Company or the trustee will be responsible or liable for any aspect
of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or
for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt
securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest,
if any, in respect of the registered global security, will immediately credit participants’ accounts with payments in amounts
proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary.
We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial
interests in the registered global security held through the participants, as is now the case with the securities held for the
accounts of customers in bearer form or registered in “street name.” We also expect that any of these payments will
be the responsibility of the participants.
If the depositary for any debt securities
represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing
agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor
depositary within 90 days, we will issue the debt securities in definitive form in exchange for the registered global security.
In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series represented
by one or more registered global securities. In such event, we will issue debt securities of that series in a definitive form in
exchange for all of the registered global securities representing the debt securities. The trustee will register any debt securities
issued in definitive form in exchange for a registered global security in such name or names as the depositary, based upon instructions
from its participants, shall instruct the trustee.
We may also issue bearer debt securities
of a series in the form of one or more global securities, referred to as “bearer global securities.” We will deposit
these bearer global securities with a common depositary for Euroclear Bank S.A./N.V., as operator of the Euroclear System, known
as “Euroclear” and Clearstream Banking, société anonyme, Luxembourg, known as “Clearstream,”
or with a nominee for the depositary identified in the prospectus supplement or pricing supplement, if any, relating to that series.
The prospectus supplement or pricing supplement, if any, relating to a series of debt securities represented by a bearer global
security will describe the specific terms and procedures, including the specific terms of the depositary arrangement and any specific
procedures for the issuance of debt securities in definitive form in exchange for a bearer global security, with respect to the
portion of the series represented by a bearer global security.
Discharge, Defeasance and Covenant Defeasance
We can discharge or defease our obligations
under the indenture as set forth below. Unless otherwise set forth in the applicable prospectus supplement or pricing supplement,
if any, the subordination provisions applicable to any subordinated debt securities will be expressly made subject to the discharge
and defeasance provisions of the indenture.
We may discharge our obligations to holders
of any series of debt securities that have not already been delivered to the trustee for cancellation and that have either become
due and payable or are by their terms to become due and payable within one year (or are scheduled for redemption within one year).
We may effect a discharge by irrevocably depositing with the trustee cash or U.S. government obligations or foreign government
obligations, as applicable, as trust funds, in an amount certified to be sufficient to pay when due, whether at maturity, upon
redemption or otherwise, the principal of, premium, if any, and interest on the debt securities and any mandatory sinking fund
payments.
Unless otherwise provided in the applicable
prospectus supplement or pricing supplement, if any, we may also discharge any and all of our obligations to holders of any series
of debt securities at any time (“legal defeasance”). We also may be released from the obligations imposed by any covenants
of any outstanding series of debt securities and provisions of the indenture, and we may omit to comply with those covenants without
creating an Event of Default (“covenant defeasance”). We may effect defeasance and covenant defeasance only if, among
other things:
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we irrevocably deposit with the trustee cash or U.S. government obligations or foreign government obligations, as applicable,
as trust funds, in an amount certified to be sufficient to pay at maturity (or upon redemption) the principal, premium, if any,
and interest on all outstanding debt securities of the series; and
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we deliver to the trustee an opinion of counsel from a nationally recognized law firm to the effect that the holders of the
series of debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the legal
defeasance or covenant defeasance and that legal defeasance or covenant defeasance will not otherwise alter the holders’
U.S. federal income tax treatment of principal, premium, if any, and interest payments on the series of debt securities, which
opinion, in the case of legal defeasance, must be based on a ruling of the Internal Revenue Service issued, or a change in U.S.
federal income tax law.
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Although we may discharge or defease our
obligations under the indenture as described in the two preceding paragraphs, we may not avoid, among other things, our duty to
register the transfer or exchange of any series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen
series of debt securities or to maintain an office or agency in respect of any series of debt securities.
Modification of the Indenture
The indenture provides that we and the trustee
may enter into supplemental indentures without the consent of the holders of debt securities to:
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secure any debt securities;
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evidence the assumption by a successor corporation of our obligations;
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add covenants for the protection of the holders of debt securities;
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add one or more guarantees for the benefit of holders of debt securities;
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cure any ambiguity, defect or inconsistency in the indenture;
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establish the forms or terms of debt securities of any series;
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evidence and provide for the acceptance of appointment by a successor trustee;
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provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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make any change that does not materially adversely affect the right of any holder; and
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comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture
Act of 1939, as amended.
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The indenture also provides that we and
the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of debt securities of
all series of senior debt securities or subordinated debt securities, as the case may be, then outstanding and affected (voting
as one class), add any provisions to, or change in any manner, eliminate or modify in any way the provisions of, the indenture
or modify in any manner the rights of the holders of the debt securities.
We and the trustee may not, however, without
the consent of the holder of each outstanding debt security affected thereby:
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extend the final maturity of any debt security;
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reduce the principal amount or premium, if any;
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reduce the rate or extend the time of payment of interest;
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reduce any amount payable on redemption;
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change the currency in which the principal (other than as may be provided otherwise with respect to a series), premium, if
any, or interest is payable;
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reduce the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration
or provable in bankruptcy;
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modify any of the subordination provisions or the definition of senior indebtedness applicable to any subordinated debt securities
in a manner adverse to the holders of those securities;
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alter provisions of the indenture relating to the debt securities not denominated in U.S. dollars;
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impair the right to institute suit for the enforcement of any payment on any debt security when due;
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reduce the percentage of holders of debt securities of any series whose consent is required for any modification of the indenture,
or the consent of whose holders is required for any waiver (of compliance with certain provisions of the indenture or certain defaults
thereunder and their consequences) provided for in the indenture; or
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modify any provisions set forth in this paragraph.
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Concerning the Trustee
The indenture provides that there may be
more than one trustee under the indenture, each with respect to one or more series of debt securities. If there are different trustees
for different series of debt securities, each trustee will be a trustee of a trust under the indenture separate and apart from
the trust administered by any other trustee under the indenture. Except as otherwise indicated in this prospectus or any prospectus
supplement, any action permitted to be taken by a trustee may be taken by such trustee only with respect to the one or more series
of debt securities for which it is the trustee under the indenture. Any trustee under the indenture may resign or be removed with
respect to one or more series of debt securities. All payments of principal of, premium, if any, and interest on, and all registration,
transfer, exchange, authentication and delivery (including authentication and delivery on original issuance of the debt securities)
of, the debt securities of a series will be effected by the trustee with respect to that series at an office designated by the
trustee in New York, New York.
The indenture contains limitations on the
right of the trustee, should it become a creditor of the Company, to obtain payment of claims in some cases or to realize on certain
property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions. If it acquires
any conflicting interest relating to any duties with respect to the debt securities, however, it must eliminate the conflict or
resign as trustee.
The holders of a majority in aggregate principal
amount of any series of debt securities then outstanding will have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the trustee with respect to such series of debt securities, provided that,
the direction would not conflict with any rule of law or with the indenture, would not be unduly prejudicial to the rights
of another holder of the debt securities, and would not involve any trustee in personal liability. The indenture provides that
in case an Event of Default shall occur and be known to any trustee and not be cured, the trustee must use the same degree of care
as a prudent person would use in the conduct of his or her own affairs in the exercise of the trustee’s power. Subject to
these provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request
of any of the holders of the debt securities, unless they shall have offered to the trustee security and indemnity satisfactory
to the trustee.
No Individual Liability of Incorporators, Stockholders, Officers
or Directors
The indenture provides that no incorporator
and no past, present or future stockholder, officer or director, of us or any successor corporation in their capacity as such shall
have any individual liability for any of our obligations, covenants or agreements under the debt securities or the indenture.
Governing Law
The indenture and the debt securities will
be governed by, and construed in accordance with, the laws of the State of New York, including, without limitation, Sections 5-1401
and 5-1402 of the New York General Obligations Law and New York Civil Practice Law and Rules 327(b).
Description
of 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 warrants we may offer under this prospectus. While the terms we have summarized below will apply generally to any warrants
offered 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
offered 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 to be sold 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:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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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;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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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;
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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;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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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
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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.
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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.
Description
of Units
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 we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that
offered 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 offered, 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 to be sold
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:
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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;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units.
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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.
Special Considerations for Indirect 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:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders’ consent, if ever required;
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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;
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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
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if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
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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:
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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;
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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;
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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;
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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;
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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;
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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
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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.
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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:
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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;
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if we notify any applicable trustee that we wish to terminate that global security; or
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if an event of default has occurred with regard to securities represented by that global security and has not been cured or
waived.
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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.
Selling
Stockholders
Amer Transaction
On December 9, 2019, we entered into
a Securities Purchase Agreement (the “Purchase Agreement”) with Amer International Group Co., Ltd. (“Amer”),
and Amer International Group Co. North America, Ltd. (“Purchaser”), an indirect wholly owned subsidiary of Amer.
Pursuant to the Purchase Agreement, Purchaser purchased (1) $4,000,000 of shares of the Company’s common stock at a
purchase price of $0.40 per share in cash; (2) $300,000 of shares of common stock (or 11,111,111 shares) at a purchase price
of $0.27 per share, paid as an offset against amounts paid by Amer to the Company pursuant to the Letter Agreement to Extend Dispute
Negotiation Period dated October 10, 2019, by and between Amer and the Company; and (3) an amended and restated warrant
to purchase 80 million shares of common stock at an exercise price of $0.50 per share, exercisable at any time from the issuance
date to September 27, 2027 (the “Restated Warrant”). Under the Restated Warrant, for every $100 million of sourced
Chinese bank lending that Amer has assisted in contributing to a completed $700 million project debt financing, 12 million warrants
will vest at an exercise price of $0.50 per share, up to the maximum of 80 million warrants.
The Purchase Agreement contains registration
rights provisions. On or before the date that is nine months following the closing under the Purchase Agreement, we agreed to file
a registration statement with the SEC to register the resale by Amer and Purchaser of the shares of common stock held by Amer and
Purchaser (including shares issued under prior agreements between the parties), as well as the shares of common stock issuable
upon exercise of the Restated Warrant. We agreed to use reasonable best efforts to have the registration statement declared effective
as promptly as practicable after filing thereof with the SEC, and to cause the Registration Statement to continue to be effective
until the date that Amer and Purchaser have either disposed of or has the ability to dispose of all securities without any volume
or manner of sale restrictions pursuant to Rule 144 of the Securities Act, and, during such period, to cause the Registration
Statement and the prospectus contained therein to be updated as reasonably deemed necessary by us or required by the Securities
Act or the Exchange Act to enable Amer and Purchaser to resell the securities. The Purchase Agreement also contains piggyback registration
rights.
Exchange and Subscription Offer
On December 27, 2019, we completed
our private offer to exchange (the “Exchange Offer”) its outstanding 10% Senior Convertible Promissory Notes and 10%
Senior Promissory Notes both due December 2019, for units consisting of our newly issued 12% Senior Promissory Notes due December 26,
2022 and warrants to purchase shares of the Company’s common stock. A total of 7.2 million warrants were issued in connection
with the Exchange Offer.
Also on December 27, 2019, we closed
the subscription offer accompanying the Exchange Offer (the “Subscription Offer”). Each participating holder in the
Exchange Offer was eligible to purchase units consisting of our newly issued 13% Senior Promissory Notes due 2022 and accompanying
warrants, up to a maximum amount of 20% of the aggregate principal amount of the holder’s notes exchanged in the Exchange
Offer. One Warrant was issued for each dollar invested in the new notes, for a total of 1.3 million warrants issued in connection
with the Subscription Offer.
Each warrant issued in the Exchange Offer
and the Subscription Offer is exercisable for one share of common stock at an initial exercise price of $0.35 per share, subject
to adjustment for stock splits, dividends and combinations, and expires on December 26, 2022.
In connection with the Exchange Offer and
the Subscription Offer, we entered into a Registration Rights Agreement, dated as of December 27, 2019 (the “Registration
Rights Agreement”), with each of the participating investors in the Exchange Offer and the Subscription Offer. Under the
Registration Rights Agreement, we agreed to file, within 90 days of the closing of the Exchange Offer and the Subscription Offer,
a shelf registration statement with the SEC covering the resale of the shares of common stock issuable upon exercise of the warrants.
We have agreed to use our reasonable best efforts to cause the shelf registration statement to be declared effective on or before
270 days after the date of filing. If the registration statement is not effective within the required time period, we will
be required to pay liquidated damages to the holders of the warrants. We are required to use our reasonable best efforts
to keep the registration statement current and continuously effective under the Securities Act until such date as all securities
covered by the registration statement have been sold, thereunder or pursuant to Rule 144, or may be sold without volume or
manner-of-sale restrictions pursuant to Rule 144.
Selling Stockholders
The following table sets forth certain information
known to us concerning the number of shares of our common stock beneficially owned by each selling stockholder and the number of
shares of common stock that may be offered from time to time by each selling stockholder under this prospectus. Except as set forth
below, none of the selling stockholders has, or within the past three years has had, any position, office or other material relationship
with us or any of our predecessors or affiliates.
Information about the selling stockholders
may change over time. In particular, the selling stockholders identified below may have sold, transferred or otherwise disposed
of all or a portion of their warrants or the underlying shares of common stock since the date on which they provided to us information
regarding their warrants. Any changed or new information given to us by the selling stockholders will be set forth in supplements
to this prospectus or amendments to the registration statement of which this prospectus is a part, if and when necessary.
Name and Address of Beneficial Owner (1)
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Number
of shares
beneficially
owned before
the offering (2)
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Number
of shares
offered
hereby (3)
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Number
of shares beneficially
owned after
the offering(3)
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Percentage
of class (4)
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Amer International Group Co. North America, Ltd. (5)
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119,078,590
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119,078,590
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0
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0
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%
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Kathleen A. Antony (6)
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23,942
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23,942
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0
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0
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%
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Bella Holdings LLC (7)
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85,739
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85,739
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0
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0
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%
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Michael K. and Nancy A. Branstetter (8)
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20,419
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20,419
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0
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*
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Michael K. Branstetter IRA (8)
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7,657
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7,657
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0
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*
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David A. Chaput (9)
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35,985
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35,985
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0
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*
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Bruce D. and Bong T. Hansen (10)
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11,724,414
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1,397,724
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10,326,690
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6.8
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%
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Kenneth D. and Mildred Elaine Hansen (11)
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58,901
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58,901
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0
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0
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%
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Eric T. and Lorena R. Kolstad (12)
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10,242
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10,242
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0
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0
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%
|
Gary A. Loving and Lynn S. Loving Family Trust dated December 1, 1997, as amended and restated in its entirety on May 15, 2007 (13)
|
|
615,934
|
|
|
182,286
|
|
|
483,648
|
|
|
*
|
|
William Matlack (14)
|
|
326,358
|
|
|
326,358
|
|
|
0
|
|
|
0
|
%
|
F. Steven Mooney (15)
|
|
6,248,611
|
|
|
6,248,611
|
|
|
0
|
|
|
0
|
%
|
Robert I. and Dolores R. Pennington (16)
|
|
2,121,895
|
|
|
77,346
|
|
|
2,044,549
|
|
|
1.4
|
%
|
R. Scott and Sheri H. Roswell (17)
|
|
838,983
|
|
|
30,939
|
|
|
808,044
|
|
|
*
|
|
Lee M. Shumway (18)
|
|
50,309
|
|
|
50,309
|
|
|
0
|
|
|
0
|
%
|
TOTAL
|
|
141,247,979
|
|
|
127,635,048
|
|
|
13,612,931
|
|
|
8.9
|
%
|
|
*
|
Less than one percent.
|
|
(1)
|
Unless otherwise specified, the address for each of the selling stockholders is c/o General Moly, Inc., 1726 Cole Blvd.,
Suite 115, Lakewood, Colorado 80401.
|
|
(2)
|
Includes all shares of stock issued or issuable upon exercise of all of the warrants.
|
|
(3)
|
Assumes the exercise of all of each selling stockholder’s warrants, and the sale of all shares received on conversion
and exercise.
|
|
(4)
|
Calculated in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act, based on 152,685,255 shares of common stock
outstanding as of April 27, 2020.
|
|
(5)
|
Based on a Schedule 13D filed with the SEC on December 19, 2019, by Amer International Group Co., Ltd. (“Amer”).
Includes 80,000,000 shares issuable upon exercise of warrants. The address of Amer International Group Co. North America, Ltd.
is 29/F, Block A, East Pacific International Center, 7888th Shennan Boulevard, Shenzen, Guangdong Province, People’s Republic
of China (the “PRC”). Amer is a wholly-owned subsidiary of Amer Holdings Group Co., Ltd., a limited liability
company organized under the laws of the PRC with its principal executive office located at Suite 503, Xixiang Investment Company
Building, No. 139 Qianjin No. 2 Road, Xixiang Borough, Baoan District, Shenzhen, Guangdong Province, the PRC. Amer Holdings
Group Co., Ltd. is owned 90% and 10%, respectively, by Mr. Wang Wen Yin and Ms. Wang Wen Zhuan. Amer holds 100%
of all outstanding equity of Shenzhen Amer Mining Investment Holding Co., Ltd., a limited liability company organized under
the laws of the PRC with its principal executive office located at 10th Floor, Nongke Business Office Building, No. 8133 Honglixi
Road, Xiangmihu Borough, Futian District, Shenzhen, Guangdong Province, the PRC. Shenzhen Amer Mining Investment Holding Co., Ltd.
holds 100% of all issued and outstanding shares of Leaway Holdings Limited, a company organized under the laws of the PRC Hong
Kong SAR with its principal executive office located at Flat/Room Q, 20th Floor, Kings Wing Plaza 2, 1 On Kwan Street, Shatin,
New Territory, PRC Hong Kong SAR. Leaway Holdings Limited holds 100% of all issued and outstanding shares of Lead Vanguard Limited,
a company organized under the laws of the British Virgin Islands with its registered office at NovaSage Chambers, P.O. Box
4389, Road Town, Tortola, British Virgin Islands. Lead Vanguard Limited holds 100% of all issued and outstanding shares of Amer
International Group Co. North America, Ltd., a corporation organized under the laws of the State of Delaware, the United States
of America with its registered office at 1201 Orange Street, Suite 600, Wilmington, New Castle County, Delaware 19801.
|
|
(6)
|
The address of Mrs. Antony is 2641 S. Brentwood Court, Lakewood, Colorado 80227.
|
|
(7)
|
The address of Bella Holdings LLC is P.O. Box 461269, Aurora, Colorado 80046.
|
|
(8)
|
Includes 20,419 shares issuable upon exercise of warrants held by Mr. and Mrs. Branstetter and 7,657 shares issuable
upon exercise of warrants held by Michael K. Branstetter IRA. The address of Mr. and Mrs. Branstetter and Michael K.
Branstetter IRA is P.O. Box 571 Osburn, ID 83849. Mr. Branstetter currently serves as the Secretary and General
Counsel of the Company and as the Trustee of Michael K. Branstetter IRA.
|
|
(9)
|
The address of Mr. Chaput is 5141 Live Oak Dr., Smithton, IL 62285.
|
|
(10)
|
Includes 1,397,724 shares issuable upon exercise of warrants, 2,962,960 shares issuable upon conversion of Series A Convertible
Preferred Stock, and 1,800,000 shares issuable upon conversion of Series B Convertible Preferred Stock. Mr. Hansen currently
serves as the Chief Executive Officer and Chief Financial Officer and a director of the Company.
|
|
(11)
|
The address of Mr. and Mrs. Hansen is 5505 South Emporia Circle, Greenwood Village, Colorado 80111.
|
|
(12)
|
The address of Mr. and Mrs. Kolstad is 2131 Banbury Road, Walnut Creek, California 94598.
|
|
(13)
|
Includes 182,286 shares issuable upon exercise of warrants and 173,648 shares held directly by Gary A. Loving. Mr. Loving
currently serves as a director of the Company, and Mr. and Mrs. Loving are the trustees of the trust. The address of
the Gary A. Loving and Lynn S. Loving Family Trust is P.O. Box 502, Flagstaff, Arizona 86002.
|
|
(14)
|
The address of Mr. Matlack is 8687 Great Horned Owl Ln., Blaine, WA 98230.
|
|
(15)
|
The address of Mr. Mooney is 5050 S. Syracuse Dr., Suite 700, Denver, CO 80246.
|
|
(16)
|
Includes 77,346 shares issuable upon exercise of warrants, 369,999 shares issuable upon conversion of Series A Convertible
Preferred Stock, 200,000 shares issuable upon conversion of Series B Convertible Preferred Stock 158,000 shares held by Robert
Pennington Dolores R. Pennington P/ADM Mineral Development LLC Dated 10/15/2007, of which Mr. Pennington is the sole member,
and 145,000 shares of unvested performance-based restricted stock that was granted to Mr. Pennington and previously reported
on Form 4 but not yet issued. Mr. Pennington currently serves as the Chief Operating Officer of the Company.
|
|
(17)
|
Includes 30,939 shares issuable upon exercise of warrants and 13,260 shares held in Mr. Roswell’s individual retirement
account. Mr. Roswell currently serves as the Chief Legal Officer of the Company.
|
|
(18)
|
The address of Mr. Shumway is c/o 3757 Lepus Dr., Sparks, NV 89436.
|
Plan
of Distribution
The securities being offered by this prospectus
may be sold by us or by a selling stockholder (which as used in this prospectus includes donees, pledgees, transferees or other
successors-in-interest selling common stock received after the date of this prospectus from a selling stockholder as a gift, pledge,
distribution or other transfer):
|
•
|
to or through underwriters;
|
|
•
|
through broker-dealers (acting as agent or principal);
|
|
•
|
directly by us or a selling stockholder to purchasers, through a specific bidding or auction process or otherwise;
|
|
•
|
through a combination of any such methods of sale; or
|
|
•
|
through any other methods described in a prospectus supplement.
|
The distribution of securities may be effected
from time to time in one or more transactions, including block transactions and transactions on the NYSE American, the Toronto
Stock Exchange or any other organized market where the securities may be traded, in the over-the-counter market, or otherwise,
on a continuous or delayed basis. The selling stockholders may act independently of us and of each other in making decisions with
respect to the timing, manner and size of each sale. The securities may be sold at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices.
The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation
for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received
from us or from the purchasers of the securities. Selling stockholders and any dealers and agents participating in the distribution
of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed
to be underwriting discounts. If such selling stockholders, dealers or agents were deemed to be underwriters, they may be subject
to statutory liabilities under the Securities Act.
Agents may from time to time solicit offers
to purchase the securities. If required, we will name in the applicable prospectus supplement any agent involved in the offer or
sale of the securities and set forth any compensation payable by us or a selling stockholder to the agent. Unless otherwise indicated
in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling
the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of
the securities.
If underwriters are used in a sale, securities
will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed
delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or
underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters
at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter
or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities,
and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering
price, if applicable. The prospectus and the applicable prospectus supplement will be used by the underwriters to resell the securities.
If a dealer is used in the sale of the securities,
we, a selling stockholder, or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will
set forth in the prospectus supplement the name of the dealer and the terms of the transactions.
We or a selling stockholder may directly
solicit offers to purchase the securities and we or a selling stockholder may make sales of securities directly to institutional
investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act of 1933 with respect
to any resale of the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including
the terms of any bidding or auction process, if used.
Agents, underwriters and dealers may be
entitled under agreements which may be entered into with us or a selling stockholder to indemnification by us or a selling stockholder
against specified liabilities, including liabilities incurred under the Securities Act of 1933, or to contribution by us or a selling
stockholder to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement will
describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers, or their
affiliates may be customers of, engage in transactions with or perform services for us or our subsidiaries in the ordinary course
of business.
Under the securities laws of some states,
the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
A selling stockholder may also sell shares
in accordance with Rule 144 under the Securities Act, or pursuant to other available exemptions from the registration requirements
of the Securities Act, rather than pursuant to this prospectus.
In addition, a selling stockholder or its
successor in interest may enter into hedging transactions with broker-dealers who may engage in short sales of the shares, short
and deliver the shares to close out such short positions, or loan or pledge the shares to broker-dealers that in turn may see such
securities. A selling stockholder or its successor in interest may also enter into option or other transactions with broker-dealers
that require the delivery by such broker-dealers of the shares, which may be resold thereafter under this prospectus if the shares
are delivered by the selling stockholder. However, if the shares are to be delivered by the selling stockholder’s successor
in interest, unless permitted by law, we must distribute a prospectus supplement and/or file an amendment to this registration
statement under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders
to include the successor in interest as a selling stockholder under this prospectus. Each selling stockholder may not satisfy its
obligations in connection with short sale or hedging transactions entered into before the effective date of the registration statement
of which this prospectus is a part by delivering securities registered under such registration statement.
A selling stockholder or its successor in
interest may from time to time pledge or grant a security interest in some or all of the shares and, if the selling stockholder
defaults in the performance of its secured obligation, the pledges or secured parties may offer and sell the shares from time to
time under this prospectus; however, in the event of a pledge or the default on the performance of a secured obligation by a selling
stockholder, in order for the shares to be sold under cover of this registration statement, we must distribute a prospectus supplement
and/or file an amendment to this registration statement under Rule 424(b)(3) or other applicable provision of the Securities
Act amending the list of selling stockholder to include the pledgee, transferee, secured party or other successors in interest
as a selling stockholder under this prospectus.
Any person participating in the distribution
of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions
of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit
the timing of purchases and sales of any of our common stock by any such person. Furthermore, Regulation M may restrict the ability
of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common
stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in
market-making activities with respect to our common stock.
Certain persons participating in an offering
may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation
M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities
will occur, they will be described in the applicable prospectus supplement.
Other than our common stock, which is listed
on the NYSE MKT and the Toronto Stock Exchange, each of the securities issued hereunder will be a new issue of securities, will
have no prior trading market, and may or may not be listed on a national securities exchange. Any common stock sold pursuant to
a prospectus supplement will be listed on the NYSE MKT and the Toronto Stock Exchange, subject to official notice of issuance.
Any underwriters to whom securities are sold by us or a selling stockholder for public offering and sale may make a market in such
securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
We cannot assure you that there will be a market for the offered securities.
We may offer securities described in this
prospectus for sale in Canada where it is lawful to make such offers, subject to compliance with the applicable laws and regulations
of the relevant jurisdictions.
We may sell securities covered by this prospectus
in and outside the United States (a) through underwriters or dealers, (b) directly to purchasers, including our affiliates,
(c) through agents or (d) through a combination of any of these methods. The accompanying prospectus supplement will
set forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters, dealers
or agents in connection with the offering, including:
|
•
|
the names of any underwriters, dealers or agents;
|
|
•
|
the respective amounts underwritten;
|
|
•
|
the name or names of any managing underwriter or underwriters;
|
|
•
|
the terms of the offering;
|
|
•
|
the purchase price of the securities and the net proceeds to us from the sale;
|
|
•
|
any underwriting discounts, commissions and other items constituting compensation to underwriters, dealers or agents;
|
|
•
|
any public offering price;
|
|
•
|
any discounts or concessions allowed or re-allowed or paid to dealers; and
|
|
•
|
any commissions paid to agents.
|
Only those underwriters identified in such
prospectus supplement are deemed to be underwriters in connection with the securities offered in the prospectus supplement.
Sale Through Underwriters Or Dealers
If underwriters are used in an offering,
the underwriters will acquire securities for their own account. The underwriters may resell the securities from time to time in
one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at
the time of sale. Underwriters may offer the securities to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you otherwise in the prospectus
supplement, the obligations of the underwriters to purchase securities will be subject to certain conditions, and the underwriters
will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to
time any offering price and any discounts or concessions allowed or re-allowed or paid to dealers.
During and after an offering through underwriters,
the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing
transactions and purchases to cover syndicate short positions created in connection with the offering.
If dealers are used in the sale of the securities
covered by this prospectus, we will sell the securities to them as principals. They may then resell those securities to the public
at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of the
dealers and the terms of the transaction.
At-the-Market Offerings
We may engage in at-the-market offerings
of our common stock. An at-the-market offering is an offering of our common stock at other than a fixed price to or through a market
maker.
Direct Sales and Sales Through Agents
We may sell the securities covered by this
prospectus directly. In this case, no underwriters or agents would be involved. We may also sell the securities through agents
designated from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the shares,
and we will describe any commissions payable to the agent. Unless we inform you otherwise in the prospectus supplement, any agent
will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities covered by this
prospectus directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities
Act of 1933, as amended, or the Securities Act, with respect to any sale of those securities. We will describe the terms of any
such sales in the prospectus supplement.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement,
we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities from
us at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The prospectus
supplement will describe the commission payable for solicitation of those contracts.
General Information
We may have agreements with the agents,
dealers and underwriters to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or
to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers and underwriters
may be customers of, engage in transactions with or perform services for us in the ordinary course of their businesses.
Other than our common stock, which is listed
on the NYSE American and the Toronto Stock Exchange, each of the securities issued hereunder will be a new issue of securities,
will have no prior trading market, and may or may not be listed on a national securities exchange. Any common stock sold pursuant
to a prospectus supplement will be listed on the NYSE American and the Toronto Stock Exchange, subject to official notice of issuance.
We cannot assure you that there will be a market for the offered securities.
We may offer securities described in this
prospectus for sale in Canada where it is lawful to make such offers, subject to compliance with the applicable laws and regulations
of the relevant jurisdictions.
Legal
Matters
The validity of the securities offered hereby
will be passed upon for us by Bryan Cave Leighton Paisner LLP, Denver, Colorado, and for any underwriters or agents by counsel
named in the applicable prospectus supplement. Bennett Jones LLP, Toronto, Ontario, is acting as our Canadian counsel.
Experts
The financial statements incorporated in
this Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2019 have been so incorporated
in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability to continue as a going
concern as described in Note 1 to the financial statements) of Plante & Moran, PLLC, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements
as of December 31, 2018 and for the year ended December 31, 2018 incorporated in this Prospectus by reference to
the Annual
Report on Form 10-K for the year ended December 31, 2019 have been so incorporated in reliance on the report
(which contains an explanatory paragraph relating to the Company's ability to continue as a going concern as described in
Note 2 to the financial statements appearing under Item 8 of the Company’s 2018 Annual Report on Form 10-K (not incorporated by reference herein)) of
PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts
in auditing and accounting.
In connection with obtaining the consent
of its former auditor, PricewaterhouseCoopers LLP (“PWC”), to the incorporation by reference of its audit report on
the Company’s past financial statements into this registration statement, the Company has agreed to release and indemnify
PWC from and against certain claims, liabilities, costs, and expenses. Such indemnification will be void if a court finds PWC liable
for professional malpractice.
Where
You Can Find More Information
We file annual, quarterly and special reports,
proxy statements and other information with the United States Securities and Exchange Commission, or the SEC. Our SEC filings are
available to the public from our web site at http://www.generalmoly.com or from the SEC’s web site at http://www.sec.gov.
The information on our website is not incorporated by reference into and is not made a part of this prospectus.
We “incorporate by reference”
in this prospectus certain information that we file with the SEC, which means that we disclose important information to you by
referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and
information in documents that we file later with the SEC will automatically update and supersede information contained in documents
filed earlier with the SEC or contained in this prospectus. We incorporate by reference in this prospectus the documents listed
below that have been previously filed with the SEC. These documents contain important information about us and our financial condition.
Filing
|
|
Period
|
Annual Report on Form 10-K (including the portions of our proxy statement for our 2020 annual meeting of stockholders incorporated by reference therein)
|
|
Year ended December 31, 2019, filed on May 4, 2020
|
|
|
|
Current Reports on Form 8-K
|
|
Filed January 3, 2020, March 17, 2020, March 27, 2020, April 2, 2020 and May 1, 2020
|
All filings by us pursuant to the Exchange
Act after the initial filing of the registration statement of which this prospectus is a part and prior to the effectiveness of
the registration statement are deemed to be incorporated by reference into this prospectus. We also incorporate by reference in
this prospectus any future filings that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended, until all of the securities that may be offered by this prospectus are sold. However, we are
not incorporating by reference any information furnished under Items 2.02 or 7.01 (or corresponding information furnished
under Item 9.01 or included as an exhibit) of Form 8-K.
You may request a copy of these filings
at no cost to you, by writing or telephoning us as follows:
General Moly, Inc.
1726 Cole Blvd., Suite 115
Lakewood, CO 80401
Attn: R. Scott Roswell
(303) 928-8599
This prospectus incorporates documents by
reference which are not presented in or delivered with this prospectus. You should rely only on the information contained in this
prospectus and in the documents that we have incorporated by reference into this prospectus. We have not authorized anyone to provide
you with different information. We are not making an offer of the securities described in this prospectus in any state where the
offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the
date on the front of those documents.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses
in connection with the issuance and distribution of the securities covered by this Registration Statement. All such expenses are
estimates, other than the registration fee payable to the Securities and Exchange Commission, and will be borne by the Registrant.
SEC registration fee
|
|
$
|
55,067.74
|
|
Fees and expenses of accountants
|
|
|
*
|
|
Fees and expenses of counsel to the Registrant
|
|
|
*
|
|
Trustee’s fees and expenses
|
|
|
*
|
|
Transfer agent and registrar fees
|
|
|
*
|
|
Miscellaneous
|
|
|
*
|
|
Total
|
|
$
|
*
|
|
|
*
|
The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time.
|
Item 15. Indemnification of Directors and Officers
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:
|
(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 the 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.
The Registrant’s certificate of incorporation
provides that no director of the company shall be personally liable to the Registrant or its 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 Registrant 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.
The Registrant’s bylaws provide for
the Registrant 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 Registrant. The Registrant’s 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 the Registrant
upon delivery to the Registrant 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 the Registrant.
As permitted by the DGCL, the Registrant
has entered into indemnity agreements with each of its directors and executive officers, that require the Registrant 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 Registrant as a director
or officer of another entity.
At present, there is no pending litigation
or proceeding involving any of the Registrant’s directors or executive officers as to which indemnification is required or
permitted, and the Registrant is not aware of any threatened litigation or proceeding that may result in a claim for indemnification.
The Registrant has an insurance policy covering
its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.
Item 16. Exhibits
The following documents are filed as exhibits
to this registration statement:
Exhibit No.
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Description
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1.1
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Form of Underwriting Agreement.*
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3.1
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Certificate of Incorporation, as amended (Filed as Exhibit 3.1 to our Quarterly Report on Form 10-Q filed on November 4, 2015.)
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3.2
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Certificate of Designation of Series A Junior Participating Preferred Stock (Filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on March 5, 2010, and incorporated herein by reference.)
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3.3
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Certificate of Designations of Series A Preferred Stock (Filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on March 28, 2019 and incorporated herein by reference.)
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3.4
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Certificate of Designation of Series B Preferred Stock (Filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on August 7, 2019 and incorporated herein by reference.)
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3.5
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Amended and Restated Bylaws (Filed as Exhibit 3.2 to our Current Report on Form 8-K filed on February 10, 2015.)
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4.1
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Form of Certificate of Designation.*
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4.2
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Form of Indenture by and between General Moly, Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee (Filed as Exhibit 4.3 to the Registrant’s Registration Statement on Form S-3/A filed on November 23, 2010, and incorporated herein by reference.)
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4.3
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Form of Debt Security (included in Exhibit 4.2).
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4.4
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Form of Indenture between the General Moly, Inc. and one or more trustees to be named.*
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4.5
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Form of Debt Security (included in Exhibit 4.4).*
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4.6
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Form of Warrant Agreement.*
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4.7
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Form of Warrant Certificate (included in Exhibit 4.4).*
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4.8
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Form of Unit Agreement.*
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4.9
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Amended and Restated Common Stock Purchase Warrant by and between General Moly, Inc. and Amer International Group Co. North America, Ltd. dated December 9, 2019 (Filed as Exhibit 10.2 to our Current Report on Form 8-K filed on December 11, 2019.)
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4.10
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Form of Common Stock Purchase Warrant (Filed as Exhibit 4.3 to our Current Report on Form 8-K filed on January 3, 2020.)
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4.11
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Registration Rights Agreement dated as of December 27, 2019, by and among General Moly, Inc. and the several investors signatory thereto (Filed as Exhibit 4.4 to our Current Report on Form 8-K filed on January 3, 2020.)
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5.1
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Opinion of Bryan Cave Leighton Paisner LLP relating to the validity of the securities being registered.**
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10.1
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Securities Purchase Agreement dated December 9, 2019, between General Moly, Inc. and Amer International Group Co. North America, Ltd. (Filed as Exhibit 10.1 to our Current Report on Form 8-K filed on December 11, 2019.)
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10.2
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Exchange and Subscription Agreement dated as of December 27, 2019, by and among General Moly, Inc. and the several investors signatory thereto (Filed as Exhibit 10.1 to our Current Report on Form 8-K filed on January 3, 2020.)
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23.1
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Consent of Plante & Moran, PLLC.**
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23.2
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Consent of PricewaterhouseCoopers LLP.**
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23.3
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Consent of John M. Marek, P.E.**
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23.4
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Consent of Bryan Cave Leighton Paisner LLP (included in Exhibit 5.1).**
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24.1
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Powers of Attorney.**
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25.1
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Form T-1 Statement of Eligibility of The Bank of New York Mellon Trust Company, N.A. as Trustee for the Form of Indenture.**
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25.2
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Form T-1 Statement of Eligibility of Trustee.*
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*
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To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference
herein.
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Item 17. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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 percent change in the
maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement;
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(iii)
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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;
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provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3
and the information required to be included in a post-effective amendment by those paragraphs is contained in 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 registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
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(2)
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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.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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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
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(ii)
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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.
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(5)
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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:
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(i)
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Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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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;
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(iii)
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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
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(iv)
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Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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(b)
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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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to any charter provision, bylaw, contract, arrangement, statute, or otherwise, the Registrant
has been advised that in the opinion of the 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 against the Registrant by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in the opinion of counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question of 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.
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(d)
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The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the applicable
trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 (“Act”) in accordance
with the rules and regulations of the Commission under Section 305(b)(2) of the Act.
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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 the City of Lakewood, State of Colorado, on the 5th day of May, 2020.
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GENERAL MOLY, INC.
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By:
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*
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Bruce D. Hansen
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Chief Executive Officer
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Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
Signature
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Title
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Date
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*
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Chief Executive Officer and Chief Financial Officer and Director
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May 5, 2020
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Bruce D. Hansen
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(Principal Executive
Officer and Principal Financial Officer)
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*
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Controller and Principal Accounting Officer
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May 5, 2020
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Amanda Corrion
|
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(Principal Accounting
Officer)
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*
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Chairman of the Board
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May 5, 2020
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Ricardo M. Campoy
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*
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Director
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May 5, 2020
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Siong Tek (Terry) Lee
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*
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Director
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May 5, 2020
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Mark A. Lettes
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*
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Director
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May 5, 2020
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Gary A. Loving
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*
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Director
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May 5, 2020
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Gregory P. Raih
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*By:
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/s/ R. Scott Roswell
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R.
Scott Roswell,
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Attorney
in fact
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