As
filed with the Securities and Exchange Commission on July 27, 2018
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
S-3
Registration
Statement
UNDER
THE SECURITIES ACT OF 1933
U.S.
ENERGY CORP.
(Exact name of registrant as specified in its charter)
Wyoming
(State or other jurisdiction of
incorporation or organization)
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83-0205516
(I.R.S. Employer
Identification No.)
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950
S. Cherry St., Unit 1515
Denver, Colorado 80246
(303) 993-3200
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
David
Veltri
950 S. Cherry St., Unit 1515
Denver, Colorado 80246
(303) 993-3200
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
a copy to:
Kenneth
Witt
Kutak Rock LLP
1801 California Street, Suite 3000
Denver, Colorado 80202
(303) 297-2400
Approximate
date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box: [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box: [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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(Do
not check if a smaller reporting
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Non-accelerated
filer [ ] company)
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Smaller
reporting company [X]
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CALCULATION
OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered(1)
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Proposed Maximum
Aggregate Offering Price(2)
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Amount of
Registration Fee(3)
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Common Stock, $0.01 par value
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Preferred Stock, $0.01 par value
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Depositary Shares
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Debt Securities
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Warrants
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Units
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Rights
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Total
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$
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100,000,000
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$
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12,450
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(4)
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(1)
Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities
which may be offered pursuant to this Registration Statement include, pursuant to Rule 416 of the Securities Act of 1933, as amended
(the “Securities Act”), such additional number of securities that may become issuable as a result of any stock split,
stock dividends or similar event. In the event the registrant elects to offer to the public fractional interests in its shares
of preferred stock registered hereunder, depositary shares, evidenced by depository receipts issued pursuant to a deposit agreement,
will be distributed to those persons purchasing fractional interests and the shares of preferred stock will be issued to the depository
under any such agreement.
(2)
An indeterminate aggregate offering price and number or amount of the securities of each identified class is being registered
as may from time to time be sold at indeterminate prices, with a maximum aggregate offering price not to exceed $100 million.
Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, or
upon exercise of, convertible or exchangeable securities.
(3)
Pursuant to Rule 457(o) under the Securities Act, the registration fee has been calculated on the basis of the maximum aggregate
offering price.
(4)
Pursuant to Rule 415(a)(6), this Registration Statement includes [$96,340,000] of unsold securities that previously were
registered pursuant to the registration statement on Form S-3 (File No. 333-204350), initially effective on 07/29/2015 with respect
to which the Registrant paid filing fees of $11,620. The filing fees previously paid with respect to shares being carried forward
to this Registration Statement reduce the filing fees currently due to [$830].
Pursuant
to Rule 429 under the Securities Act of 1933, as amended, the prospectus included in this registration statement is a combined
prospectus and relates to Registration Statement No. 333-204350, previously filed by the registrant and initially declared effective
on July 29, 2015. Upon effectiveness, this registration statement, which is a new registration statement, will also constitute
a post-effective amendment to Registration Statement No. 333-204350.
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 SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
THE
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT
IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
SUBJECT
TO COMPLETION, DATED JULY 27, 2018
DEPOSITARY
SHARES
DEBT SECURITIES
WARRANTS
UNITS
RIGHTS
We
may offer and sell, from time to time in one or more offerings, any combination of debt and equity securities that we describe
in this prospectus with a maximum aggregate offering price of $100 million.
This
prospectus provides a general description of the securities we may offer for sale from time to time. Each time we sell securities
under this prospectus, we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus
supplement may also add, update or change information contained in this prospectus. Any statement contained in this prospectus
is deemed modified or superseded by any inconsistent statement contained in an accompanying prospectus supplement. You should
read this prospectus and any prospectus supplement, as well as the documents incorporated by reference into this prospectus, carefully
before you invest.
We
may offer and sell these securities, or any combination of these securities, from time to time, to or through one or more underwriters,
dealers and agents, or directly to purchasers, on a continuous or delayed basis, at prices and on other terms to be determined
at the time of offering.
Our
common stock is listed on The NASDAQ Capital Market® under the symbol “USEG.” Any common stock sold pursuant to
a prospectus supplement will be listed on The NASDAQ Capital Market® subject to official notice of issuance to the extent
required. We may elect to list any of the other securities on any exchange, but are not obligated to do so, and, unless stated
otherwise in the applicable prospectus supplement, such other securities will not be listed on any securities exchange.
Investing
in our securities involves risks. You should carefully read and evaluate the risks described under “Risk Factors”
on page 2 of this prospectus as well as the risk factors and other information contained or incorporated by reference in this
prospectus and the applicable prospectus supplement before investing in our securities.
You
should carefully read this prospectus and any applicable prospectus supplement and free writing prospectus, together with any
additional information described under the heading “Where You Can Find More Information,” before you invest in our
securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is __________, 2018.
table
of contents
PROSPECTUS
SUMMARY
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as
the “SEC” or the “Commission”, using a “shelf” registration process. Under the shelf registration,
we may sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount
of $100 million. This prospectus provides you with a general description of the securities that we may offer. Each time that we
sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement also may add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement, together with the additional information incorporated by reference
in this prospectus, before making an investment in our securities. See “Where You Can Find More Information.” We may
use this prospectus to sell securities only if it is accompanied by a prospectus supplement.
You
should rely only on the information incorporated by reference or provided in this prospectus or any supplement to this prospectus.
We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the information in this prospectus, any accompanying prospectus
supplement, or any document incorporated by reference, is accurate as of any date other than the date of such document.
This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of
the offering, you should refer to the registration statement, including its exhibits.
In
this prospectus, references to “U.S. Energy,” “the Company,” “the Registrant,” “we,”
“us” or “our” refer to U.S. Energy Corp. and its subsidiaries, unless the context suggests otherwise.
THE
COMPANY
U.S.
Energy is a Wyoming corporation organized in 1966. We are an independent energy company focused on the acquisition and development
of oil and gas producing properties and other mineral properties in the continental United States. Our oil and gas business is
currently focused in South Texas and the Williston Basin in North Dakota. Our principal offices are located at 950 S. Cherry Street,
Suite 1515, Denver, Colorado 80246. Our telephone number is 303-993-3200.
We
have historically explored for and produced oil and gas through a non-operator business model. As a non-operator, we rely on our
operating partners to propose, permit, drill, complete and produce oil and gas wells. Before a well is drilled, the operator provides
all oil and gas interest owners in the designated well the opportunity to participate in the drilling and completion costs and
revenues of the well on a pro-rata basis. Our operating partners also produce, transport, market and account for all oil and gas
production.
We
believe that additional value can be generated if we have the ability to operate oil and gas properties because operatorship will
allow us to control drilling and production timing, capital costs and future planning of operations. We plan to look for opportunities
to operate our own wells in the future through acquisition of new oil and gas properties and/or by consolidating ownership in
and around the areas in which we currently participate. We believe the current price climate will make opportunities available
for us to acquire and/or develop operated properties, and our objective is to eventually operate the properties which comprise
the majority of our production.
RISK
FACTORS
Investing
in our securities involves risks. Before you make a decision to buy our securities, in addition to the risks and uncertainties
discussed below under “Cautionary Statement Regarding Forward-Looking Statements,” you should carefully read and consider
the risks and uncertainties and the risk factors set forth under the caption “Risk Factors” in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2017, which is incorporated by reference in this prospectus, and under the caption
“Risk Factors” or any similar caption in the other documents and reports that we file with the SEC after the date
of this prospectus that are incorporated or deemed to be incorporated by reference in this prospectus as well as any risks described
in any applicable prospectus supplement or free writing prospectus that we provide you in connection with an offering of securities
pursuant to this prospectus. Additionally, the risks and uncertainties discussed in this prospectus or in any document incorporated
by reference into this prospectus are not the only risks and uncertainties that we face, and our business, financial condition,
liquidity and results of operations and the market price of any securities we may sell could be materially adversely affected
by additional factors that apply to all companies generally, as well as other risks that are not known to us or that we currently
do not consider to be material.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements contained in this prospectus, any prospectus supplement and any free writing prospectus that we may provide to you
in connection with an offering of our securities, including information incorporated by reference, may contain “forward-looking
statements” within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995.
The use of any of the words “may,” “will,” “should,” “could,” “believe,”
“expect,” “anticipate,” “project,” “plan,” “schedule,” “expect,”
“estimate,” “objective,” “forecast,” “goal,” “potential,” “opportunity,”
“focus,” “intend,” “committed,” “continue,” “will likely result” or
“will continue” and similar expressions that concern our strategy, plans, intentions or beliefs about future occurrences
or results may constitute forward-looking statements. For example, forward-looking statements may include statements relating
to estimated and projected expenditures, cash flows, results of operations, financial condition and liquidity; plans and objectives
for future operations, growth or initiatives; and the expected outcome or effect of pending or threatened litigation are forward-looking
statements.
Although
we believe that the expectations reflected in such forward-looking statements are reasonable, those expectations may prove to
be incorrect. Important factors that could cause actual results to differ materially from our expectations, or cautionary statements,
are discussed under the heading “Risk Factors” and in documents incorporated in this prospectus by reference and may
be so included in any prospectus supplement, including, without limitation, in conjunction with the forward-looking statements.
All forward-looking statements speak only as of the date made. We undertake no obligation to update or revise any forward-looking
statement to reflect events or circumstances arising after the date on which they were made. All written and oral forward-looking
statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by these and other cautionary
statements that we make from time to time in our other SEC filings and public communications.
Factors
that could cause actual results to differ materially from our expectations include, among others, such things as:
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uncertainty
regarding our future operating results;
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risks
related to the failure to obtain adequate financing on a timely basis and on acceptable terms;
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oil,
natural gas liquids (“NGLs”) and natural gas prices;
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overall
United States and global economic and financial markets conditions;
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domestic
and foreign demand and supply for oil, NGLs, natural gas and the products derived from these hydrocarbons;
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the
willingness and ability of the Organization of Petroleum Exporting Countries to set and maintain oil price and production
controls;
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our
ability to maintain a sound financial position;
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our
cash flow and liquidity;
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the
effects of government regulation and permitting and other legal requirements, including law or regulations that could restrict
or prohibit hydraulic fracturing;
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disruption
to credit and capital markets;
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disruptions
to capacity constraints in or limitations on the pipeline systems that deliver our oil, NGLs and natural gas and other processing
and transportation considerations;
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our
ability to successfully market oil, NGLs and natural gas;
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high
costs, shortages, delivery delays or unavailability of drilling and completion equipment, material, labor or other services;
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profitability
of drilling locations;
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interpretation
of 3-D seismic data;
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our
ability to replace our oil, NGL and natural gas reserves;
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our
ability to retain and attract key personnel;
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our
business strategy;
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development
of our current asset base or property acquisitions; and
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future
oil and gas production rates and/or the ultimate recoverability of reserves falling below estimates.
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USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, we intend to use the net proceeds we receive from the sale of securities
for general corporate purposes.
DESCRIPTION
OF CAPITAL STOCK
General
This
prospectus describes the general terms of our capital stock. The following description is not complete and may not contain all
the information you should consider before investing in our capital stock. For a more detailed description of these securities,
you should read the applicable provisions of Wyoming law and our articles of incorporation and bylaws, and the documents incorporated
herein by reference. To the extent the information contained in the prospectus supplement differs from this summary description,
you should rely on the information in the prospectus supplement.
Our
authorized capital stock consists of:
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An
unlimited number of shares of common stock, par value $0.01 per share, of which [12,590,815] shares were issued and outstanding
as of March 31, 2018; and
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100,000
shares of preferred stock, par value $0.01 per share, are authorized, of which 50,000 shares of Series A Convertible Preferred
Stock were issued and outstanding as of March 31, 2018.
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The
Company is authorized to issue 50,000 shares of Series P Preferred stock in connection with a shareholder rights plan that
expired in 2011, of which no shares of Series P Preferred are outstanding.
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Common
Stock
Shares
of common stock may be issued for such consideration and on such terms as determined by the board of directors, without stockholder
approval. Holders are entitled to receive dividends when and as declared by the board of directors out of funds legally available
therefor. We may declare dividends in the future but we expect to retain most or all of our earnings and cash to fund investments
and business development. Holders of common stock are entitled to one vote for each share held on all matters submitted to a vote
of stockholders, except that cumulative voting in the election of directors is permitted. Directors are elected by a plurality
of the votes cast.
Listing
Shares
of our common stock are listed for trading on the NASDAQ Capital Market under the trading symbol “USEG.”
Preferred
Stock
Our
articles of incorporation authorize our board of directors to establish one or more series of preferred stock. We currently have
50,000 outstanding shares of Series A Convertible Preferred Stock, approved by the Board of Directors in February 2016 in connection
with the disposition of the Company’s mining segment. Prior to the issuance of shares of each series, the board of directors
is required to adopt resolutions providing for the issuance of such preferred stock. Each series of preferred stock is to be appropriately
designated prior to the issue of any shares thereof by some distinguishable letter, number or title. All shares of preferred stock
shall be of equal rank and have the same powers, preferences and rights, and shall be subject to the same qualifications, limitation
and restrictions, without distinction between the shares of different series thereof, except in regard to the following particulars,
which may be different in different series:
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The
rate of dividends;
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The
price at the terms and conditions on which shares may be redeemed and any restrictions regarding such redemption;
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The
amount payable upon shares in the event of voluntary or involuntary liquidation;
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Sinking
fund provisions for the redemption or purchaser of shares;
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The
terms and conditions on which shares may be converted if the shares of any series are issued with the privilege of conversion;
and
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Voting
rights, preemptive rights, and/or restrictions on alienability, if any.
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The
board of directors may, from time to time, increase the number of shares of any series of preferred stock already created by providing
that any unissued shares of preferred stock shall constitute part of such series, or may decrease (but not below the number of
shares thereof then outstanding) the number of shares of any series of any preferred stock already created providing that any
unissued shares previously assigned to such series shall no longer constitute a part thereof. The board of directors is empowered
to classify or reclassify any unissued preferred stock by fixing or altering the terms thereof in respect to the above-mentioned
particulars and by assigning the same to an existing or newly-created series from time to time before the issuance of such stock.
DESCRIPTION
OF DEPOSITARY SHARES
The
following summarizes some of the general provisions of the deposit agreement and of the depositary shares and depositary receipts,
other than pricing and other terms disclosed in a prospectus supplement. You should read the particular terms of any depositary
shares and any depositary receipts that are offered by us and any deposit agreement relating to a particular series of preferred
stock, which will be described in more detail in a prospectus supplement. The prospectus supplement will also state the name of
the depositary and whether any of the generalized provisions summarized below do not apply to the depositary shares or depositary
receipts being offered. A form of deposit agreement, including the form of depositary receipt, will be filed as an exhibit to
the registration statement of which this prospectus forms a part.
General
We
may, at our option, elect to offer fractional shares or multiple shares of preferred stock, rather than whole individual shares
of preferred stock. If we decide to do so, we will issue the preferred stock in the form of depositary shares. Each depositary
share will represent a fraction or multiple of a share of a particular series of preferred stock and will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional
or multiple shares of preferred stock in accordance with the terms of the prospectus supplement or other offering materials.
The
shares of any series of preferred stock represented by depositary shares will be deposited under a deposit agreement between us
and a bank or trust company selected by us having its principal office in the United States, as a preferred stock depositary.
Each owner of a depositary share will be entitled to all the rights and preferences of the underlying preferred stock, including
dividend, voting, redemption, conversion, and liquidation rights, in proportion to the applicable fraction of a share of preferred
stock represented by the depositary share.
Dividends
and Other Distributions
The
preferred stock depositary will distribute all cash dividends or other cash distributions received in respect of the deposited
preferred stock to the record holders of depositary shares relating to the underlying preferred stock in proportion to the number
of the depositary shares owned by the holders.
The
preferred stock depositary will distribute any property received by it other than cash to the record holders of depositary shares
entitled to these distributions. If the preferred stock depositary determines that it is not feasible to make a distribution,
it may, with our approval, sell the property and distribute the net proceeds from the sale to the holders of the depositary shares.
Conversion
or Exchange of Preferred Stock
If
a series of preferred stock represented by depositary shares is subject to conversion or exchange, the applicable prospectus supplement
will describe the rights or obligations of each record holder of depositary receipts to convert or exchange the depositary shares.
Redemption
of Preferred Stock
If
we redeem a series of preferred stock represented by depositary shares, the depositary shares will be redeemed from the proceeds
received by the preferred stock depositary resulting from the redemption, in whole or in part, of the applicable series of preferred
stock. The depositary shares will be redeemed by the preferred stock depositary at a price per depositary share equal to the applicable
fraction of the redemption price per share payable in respect of the shares of preferred stock so redeemed.
Whenever
we redeem shares of preferred stock held by the preferred stock depositary, the preferred stock depositary will redeem as of the
same date the number of depositary shares representing shares of preferred stock so redeemed. If fewer than all the depositary
shares are to be redeemed, the depositary shares to be redeemed will be selected by the preferred stock depositary by lot or ratably
or by any other equitable method as the preferred stock depositary decides.
Withdrawal
of Preferred Stock
Unless
the related depositary shares have previously been called for redemption, any holder of depositary shares may receive the number
of whole shares of the related series of preferred stock and any money or other property represented by those depositary shares
after surrendering the related depositary receipts at the corporate trust office of the preferred stock depositary. Holders of
depositary shares making these withdrawals will be entitled to receive whole shares of preferred stock on the basis set forth
in the prospectus supplement or other offering materials for that series of preferred stock.
However,
holders of whole shares of preferred stock will not be entitled to deposit that preferred stock under the deposit agreement or
to receive depositary shares for that preferred stock after withdrawal. If the depositary shares surrendered by the holder in
connection with withdrawal exceed the number of depositary shares that represent the number of whole shares of preferred stock
to be withdrawn, the preferred stock depositary will deliver to that holder at the same time new depositary receipts evidencing
the excess number of depositary shares.
Voting
Deposited Preferred Stock
When
the preferred stock depositary receives notice of any meeting at which the holders of any series of deposited preferred stock
are entitled to vote, the preferred stock depositary will mail the information contained in the notice to the record holders of
the depositary shares relating to the applicable series of preferred stock. Each record holder of the depositary shares on the
record date will be entitled to instruct the preferred stock depositary to vote the amount of the preferred stock represented
by the holder’s depositary shares. To the extent possible, the preferred stock depositary will vote the amount of the series
of preferred stock represented by depositary shares in accordance with the instructions it receives.
We
will agree to take all reasonable actions that the preferred stock depositary determines are necessary to enable the preferred
stock depositary to vote as instructed. The preferred stock depositary will vote all shares of any series of preferred stock held
by it proportionately with instructions received if it does not receive specific instructions from the holders of depositary shares
representing that series of preferred stock.
Amendment
and Termination of the Deposit Agreement
The
form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may at any time be amended
by agreement between us and the preferred stock depositary. However, any amendment that imposes additional charges or materially
and adversely alters the existing rights of the holders of depositary shares will not be effective unless the amendment has been
approved by the holders of at least a majority of the affected depositary shares then outstanding. Holders who retain their depositary
shares after the amendment becomes effective will be deemed to agree to the amendment and will be bound by the amended deposit
agreement. The deposit agreement automatically terminates if:
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all
outstanding depositary shares have been redeemed;
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each share of preferred
stock has been converted into or exchanged for common stock; or
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a final distribution
in respect of the preferred stock has been made to the holders of depositary shares in connection with any liquidation, dissolution
or winding up of the Company.
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We
may terminate the deposit agreement at any time and the preferred stock depositary will give notice of that termination to the
record holders of all outstanding depositary receipts prior to the termination date. In that event, the preferred stock depositary
will deliver or make available for delivery to holders of depositary shares, upon surrender of the related depositary receipts,
the number of whole or fractional shares of the related series of preferred stock as are represented by those depositary shares.
Charges
of Preferred Stock Depositary; Taxes and Other Governmental Charges
No
fees, charges and expenses of the preferred stock depositary or any agent of the preferred stock depositary or of any registrar
will be payable by any person other than us, except for any taxes and other governmental charges and except as provided in the
deposit agreement. If the preferred stock depositary incurs fees, charges or expenses for which it is not otherwise liable at
the election of a holder of depositary shares or other person, that holder or other person will be liable for those fees, charges
and expenses.
Resignation
and Removal of Depositary
The
preferred stock depositary may resign at any time by delivering to us notice of its intent to do so, and we may at any time remove
the preferred stock depositary. Any resignation or removal will take effect upon the appointment of a successor preferred stock
depositary and its acceptance of the appointment. A successor preferred stock depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United
States and having the requisite combine capital and surplus as set forth in the applicable agreement.
Miscellaneous
The
preferred stock depositary will forward all reports and communications from the Company which are delivered to the preferred stock
depositary and which we are required to furnish to the holders of the deposited preferred stock.
Neither
the preferred stock depositary nor the Company will be liable if it is prevented or delayed by law or any circumstances beyond
its control in performing its obligations under the deposit agreement. The obligations of the Company and the preferred stock
depositary under the deposit agreement will be limited to performance with honest intentions of their duties under the agreement
and we and they will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares, depositary
receipts or shares of preferred stock unless satisfactory indemnity is furnished. The Company and the preferred stock depositary
may rely upon written advice of counsel or accountants, or upon information provided by holders of depositary shares or other
persons believed to be competent and on documents believed to be genuine.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with and subject to the additional information we include in any applicable prospectus supplement,
summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer
to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus.
To the extent the information contained in the prospectus supplement differs from this summary description, you should rely on
the information in the prospectus supplement.
We
may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other
securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and,
unless otherwise specified in a supplement to this prospectus, may be issued in one or more series. In the event that any series
of debt securities will be subordinated to other indebtedness that we have outstanding or may incur, the terms of the subordination
will be set forth in the prospectus supplement relating to the subordinated debt securities.
The
debt securities will be issued under an indenture among the Company and a trustee named in the prospectus supplement. We have
summarized select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an
exhibit to the registration statement and you should read the indenture for provisions that may be important to you. Capitalized
terms used in the summary and not defined herein have the meanings specified in the indenture.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth
or determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental
indenture. The particular terms of each series of debt securities will be described in a prospectus supplement relating to such
series, including any pricing supplement or term sheet.
We
can issue debt securities under the indenture in one or more series with the same or various maturities, at par, at a premium,
or at a discount. We will set forth in a prospectus supplement, including any pricing supplement or term sheet, relating to any
series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
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the
title of the debt securities;
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the
price or prices (expressed as a percentage of the principal amount thereof) at which debt securities of the series will be
issued;
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any
limit upon the aggregate principal amount of the debt securities;
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the
date or dates, or the method of determining the dates, on which the debt securities will mature;
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the
interest rate or rates, which may be fixed or variable, of the debt securities, or the method of determining those rates,
the interest payment dates and, for registered debt securities, the regular record dates;
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the
places where payments may be made on the debt securities and where the debt securities may be surrendered for registration
of transfer and exchange and where notices and demands to or upon us in respect of the debt securities may be served and the
method of such payment, if by wire transfer, mail or other means;
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any
mandatory or optional redemption provisions applicable to the debt securities;
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any
sinking fund or analogous provisions applicable to the debt securities;
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whether
and on what terms we will pay additional amounts to holders of the debt securities that are not U.S. persons in respect of
any tax, assessment or governmental charge withheld or deducted and, if so, whether and on what terms we will have the option
to redeem the debt securities rather than pay the additional amounts;
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whether
the debt securities will be senior or subordinated;
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any
terms for the attachment to the debt securities of warrants, options or other rights to purchase or sell our securities;
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if
the debt securities will be secured by any collateral and, if so, a general description of the collateral and the terms and
provisions of such collateral security, pledge or other agreements;
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any
depositaries, interest rate calculation agents, exchange rate calculation agents or other agents;
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the
portion of the principal amount of the debt security payable upon the acceleration of maturity if other than the entire principal
amount of the debt securities;
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any
deletions of, or changes or additions to, the events of default or covenants applicable to the debt securities;
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if
other than U.S. dollars, the currency or currencies in which payments of principal, premium and/or interest on the debt securities
will be payable and whether the holder may elect payment to be made in a different currency;
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the
method of determining the amount of any payments on the debt securities which are linked to an index;
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whether
the debt securities will be issued in fully registered form without coupons or in bearer form, with or without coupons, or
any combination of these, and whether they will be issued in the form of one or more global securities in temporary or definitive
form;
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whether
the debt securities will be convertible or exchangeable into or for common stock, preferred stock or other debt securities
and the conversion price or exchange ratio, the conversion or exchange period and any other conversion or exchange provisions;
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any
terms relating to the delivery of the debt securities if they are to be issued upon the exercise of warrants; and
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any
other specific terms of the debt securities.
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We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration
of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal
income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus
supplement.
If
we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit
or units, or if the principal of, and premium, if any, and interest on, any series of debt securities is payable in a foreign
currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections,
general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign
currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Exchange,
Registration and Transfer
Debt
securities may be transferred or exchanged at the corporate trust office of the security registrar or at any other office or agency
maintained by our Company for these purposes, without the payment of any service charge, except for any tax or governmental charges.
The senior trustee initially will be the designated security registrar in the United States for the senior debt securities. The
subordinated trustee initially will be the designated security registrar in the United States for the subordinated debt securities.
If
debt securities are issuable as both registered debt securities and bearer debt securities, the bearer debt securities will be
exchangeable for registered debt securities. Except as provided below, bearer debt securities will have outstanding coupons. If
a bearer debt security with related coupons is surrendered in exchange for a registered debt security between a record date and
the date set for the payment of interest, the bearer debt security will be surrendered without the coupon relating to that interest
payment and that payment will be made only to the holder of the coupon when due.
In
the event of any redemption in part of any class or series of debt securities, we will not be required to issue, register the
transfer of, or exchange, debt securities of any series between the opening of business 15 days before any selection of debt securities
of that series to be redeemed and the close of business on:
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if debt securities of the series are issuable only as registered debt securities, the day of mailing of the relevant notice of redemption; and
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if debt securities of the series are issuable as bearer debt securities, the day of the first publication of the relevant notice of redemption or, if debt securities of the series are also issuable as registered debt securities and there is no publication, the day of mailing of the relevant notice of redemption.
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Unless
otherwise indicated in the applicable prospectus supplement, we will not be required to:
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register the transfer of, or exchange, any registered debt security selected for redemption, in whole or in part, except the unredeemed portion of any registered debt security being redeemed in part; or
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exchange any bearer debt security selected for redemption, except to exchange it for a registered debt security which is simultaneously surrendered for redemption.
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Payment
and Paying Agent
We
will pay principal, interest and any premium on fully registered securities in the designated currency or currency unit at the
office of a designated paying agent. Payment of interest on fully registered securities may be made at our option by check mailed
to the persons in whose names the debt securities are registered on days specified in the indenture or any prospectus supplement.
We
will pay principal, interest and any premium on bearer securities in the designated currency or currency unit at the office of
a designated paying agent or agents outside of the United States. Payments will be made at the offices of the paying agent in
the United States only if the designated currency is U.S. dollars and payment outside of the United States is illegal or effectively
precluded. If any amount payable on any debt security or coupon remains unclaimed at the end of two years after that amount became
due and payable, the paying agent will release any unclaimed amounts to us, and the holder of the debt security or coupon will
look only to us for payment.
Certain
Covenants in the Indenture
The
prospectus supplement relating to a series of debt securities will describe any material covenants in respect of that series of
debt securities, including but not limited to any restrictions on the declaration of dividends or requiring the maintenance of
any asset ratio or the creation or maintenance of reserves, and any restrictions on the incurrence of additional debt or the issuance
of additional securities.
Global
Securities
A
global security represents one or any other number of individual debt securities. Generally all debt securities represented by
the same global securities will have the same terms. Each debt security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial
institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus
supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all debt securities that
are issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary or its nominee, unless
special termination situations arise. As a result of these arrangements, the depositary, or its nominee, will be the sole registered
holder of all debt 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 either with the depositary or with another institution that has an account with the depositary. Thus,
an investor whose security is represented by a global security will not be a registered holder of the debt security, but an indirect
holder of a beneficial interest in the global security.
Temporary
Global Securities
All
or any portion of the debt securities of a series that are issuable as bearer debt securities initially may be represented by
one or more temporary global debt securities, without interest coupons, to be deposited with the depositary for credit to the
accounts of the beneficial owners of the debt securities or to other accounts as they may direct. On and after an exchange date
provided in the applicable prospectus supplement, each temporary global debt security will be exchangeable for definitive debt
securities in bearer form, registered form, definitive global bearer form or any combination of these forms, as specified in the
prospectus supplement. No bearer debt security delivered in exchange for a portion of a temporary global debt security will be
mailed or delivered to any location in the United States.
Interest
on a temporary global debt security will be paid to the depositary with respect to the portion held for its account only after
the depositary delivers to the trustee a certificate which states that the portion:
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is
not beneficially owned by a United States person;
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has
not been acquired by or on behalf of a United States person or for offer to resell or for resale to a United States person
or any person inside the United States; or
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if
a beneficial interest has been acquired by a United States person, that the person is a financial institution, as defined
in the Internal Revenue Code, purchasing for its own account or has acquired the debt security through a financial institution
and that the debt securities are held by a financial institution that has agreed in writing to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code and the regulations to the Internal Revenue Code and that
it did not purchase for resale inside the United States.
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The
certificate must be based on statements provided by the beneficial owners of interests in the temporary global debt security.
The depositary will credit the interest received by it to the accounts of the beneficial owners of the debt security or to other
accounts as they may direct.
“United
States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or an estate or trust with income subject to United States federal income taxation regardless
of its source.
Definitive
Global Securities
Bearer
Securities
. The applicable prospectus supplement will describe the exchange provisions, if any, of debt securities issuable
in definitive global bearer form. We will not deliver any bearer debt securities delivered in exchange for a portion of a definitive
global debt security to any location in the United States.
U.S.
Book-Entry Securities
. Debt securities of a series represented by a definitive global registered debt security and deposited
with or on behalf of a depositary in the United States will be represented by a definitive global debt security registered in
the name of the depositary or its nominee. Upon the issuance of a global debt security and the deposit of the global debt security
with the depositary, the depositary will credit, on its book-entry registration and transfer system, the respective principal
amounts represented by that global debt security to the accounts of participating institutions that have accounts with the depositary
or its nominee. The accounts to be credited shall be designated by the underwriters or agents for the sale of U.S. book-entry
debt securities or by us, if these debt securities are offered and sold directly by us.
Ownership
of U.S. book-entry debt securities will be limited to participants or persons that may hold interests through participants. In
addition, ownership of U.S. book-entry debt securities will be evidenced only by, and the transfer of that ownership will be effected
only through, records maintained by the depositary or its nominee for the definitive global debt security or by participants or
persons that hold through participants.
So
long as the depositary or its nominee is the registered owner of a global debt security, that depositary or nominee, as the case
may be, will be considered the sole owner or holder of the U.S. book-entry debt securities represented by that global debt security
for all purposes under the indenture. Payment of principal of, and premium and interest, if any, on, U.S. book-entry debt securities
will be made to the depositary or its nominee as the registered owner or the holder of the global debt security representing the
U.S. book-entry debt securities. Owners of U.S. book-entry debt securities:
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will
not be entitled to have the debt securities registered in their names;
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will
not be entitled to receive physical delivery of the debt securities in 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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The
laws of some jurisdictions require that purchasers of securities take physical delivery of securities in definitive form. These
laws impair the ability to purchase or transfer U.S. book-entry debt securities.
We
expect that the depositary for U.S. book-entry debt securities of a series, upon receipt of any payment of principal of, or premium
or interest, if any, on, the related definitive global debt security, will immediately credit participants’ accounts with
payments in amounts proportionate to their respective beneficial interests in the principal amount of the global debt security
as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a
global debt security held through those participants will be governed by standing instructions and customary practices, as is
now the case with securities held for the accounts of customers in bearer form or registered in “street name,” and
will be the responsibility of those participants.
Redemption
and Repurchase
The
debt securities may be redeemable at our option, or may be subject to mandatory redemption by us, as required by a sinking fund
or otherwise. In addition, the debt securities may be subject to repurchase or repayment by us at the option of the holders. The
applicable prospectus supplement will describe the terms, the times and the prices regarding any optional or mandatory redemption
by us or any repurchase or repayment at the option of the holders of any series of debt securities.
Conversion
and Exchange
The
terms, if any, on which debt securities of any series are convertible into or exchangeable for our common stock or any other securities
or property will be set forth in the applicable prospectus supplement. Such terms may include provisions for conversion or exchange,
either mandatory, at the option of the holders or at our option. Unless otherwise expressly stated in the applicable prospectus
supplement, references in this prospectus and any prospectus supplement to the conversion or exchange of debt securities of any
series for our common stock or other securities or property shall be deemed not to refer to or include any exchange of any debt
securities of a series for other debt securities of the same series.
Subordination
Debt
securities of a series may be subordinated which we refer to as subordinated debt securities, to senior indebtedness (as defined
in the applicable prospectus supplement) to the extent set forth in the prospectus supplement relating thereto. To the extent
we conduct operations through subsidiaries, the holders of debt securities (whether or not subordinated debt securities) will
be structurally subordinated to the creditors of our subsidiaries.
Consolidation,
Merger, Sale or Conveyance
We
may, without the consent of the holders of the debt securities, merge into or consolidate with any other person, or convey or
transfer all or substantially all of our properties and assets to another person provided that:
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we
are the surviving corporation or the successor person (if other than us) is a corporation organized and validly existing under
the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture;
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immediately
after giving effect to the transaction, no default or event of default shall have occurred and be continuing; and
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certain
other conditions are met.
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The
remaining or acquiring person will be substituted for us in the indenture with the same effect as if it had been an original party
to the indenture. A prospectus supplement will describe any other limitations on our ability to merge into, consolidate with,
or convey or transfer all or substantially all of our properties and assets to, another person. Notwithstanding the above, any
of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Satisfaction
and Discharge; Defeasance
We
may be discharged from our obligations on the debt securities of any class or series that have matured or will mature or be redeemed
within one year if we deposit with the trustee enough cash and/or U.S. government obligations or foreign government securities,
as the case may be, to pay all the principal, interest and any premium due to the stated maturity or redemption date of the debt
securities and comply with the other conditions set forth in the indenture. The principal conditions that we must satisfy to discharge
our obligations on any debt securities are (1) pay all sums payable with respect to the applicable series of debt securities and
(2) deliver to the trustee an officers’ certificate and an opinion of counsel which state that the required conditions have
been satisfied.
The
indenture contains a provision that permits us to elect to be discharged from all of our obligations with respect to any class
or series of debt securities then outstanding. However, even if we effect a legal defeasance, some of our obligations will continue,
including obligations to:
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maintain
and apply money in the defeasance trust;
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register
the transfer or exchange of the debt securities;
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replace
mutilated, destroyed, lost or stolen debt securities; and
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maintain
a registrar and paying agent in respect of the debt securities.
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The
indenture also permits us to elect to be released from our obligations under specified covenants and from the consequences of
an event of default resulting from a breach of those covenants. To make either of the above elections, we must deposit in trust
with the trustee cash and/or U.S. government obligations, if the debt securities are denominated in U.S. dollars, and/or foreign
government securities if the debt securities are denominated in a foreign currency, which through the payment of principal and
interest under their terms will provide sufficient amounts, without reinvestment, to repay in full those debt securities. As a
condition to legal defeasance or covenant defeasance, we must deliver to the trustee an opinion of counsel that the holders of
the debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and
defeasance and will be subject to U.S. federal income tax in the same amount and in the same manner and times as would have been
the case if the deposit and defeasance had not occurred. In the case of a legal defeasance only, the opinion of counsel must be
based on a ruling of the U.S. Internal Revenue Service or other change in applicable U.S. federal income tax law.
The
indenture will specify the types of U.S. government obligations and foreign government securities that we may deposit.
Events
of Default, Notice and Waiver
Unless
otherwise specified in the applicable prospectus supplement, any of the following events will be events of default with respect
to the debt securities:
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failure
to pay interest on any debt security of the class or series for 30 days when due;
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failure
to pay the principal or any premium on any debt securities of the class or series when due;
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failure
to make any sinking fund payment for 30 days when due;
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failure
to perform any other covenant in the debt securities of the series or in the applicable indenture with respect to debt securities
of the series for 90 days after being given notice; and
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occurrence
of an event of bankruptcy, insolvency or reorganization set forth in the indenture.
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An
event of default for a particular class or series of debt securities does not necessarily constitute an event of default for any
other class or series of debt securities issued under the indenture.
In
the case of an event of default arising from events of bankruptcy or insolvency set forth in an indenture, all outstanding debt
securities will become due and payable immediately without further action or notice. If any other event of default as to a series
of debt securities occurs and is continuing, the trustee or the holders of at least 25% in principal amount of the then outstanding
debt securities of that series may declare all the debt securities to be due and payable immediately.
The
holders of a majority in aggregate principal amount of the debt securities then outstanding by notice to the trustee may on behalf
of the holders of all of the debt securities of that series waive any existing default or event of default and its consequences
under the indenture except a continuing default or event of default in the payment of interest on, or the principal of, the debt
securities of that series.
The
indenture will require the trustee to, within 90 days after the occurrence of a default known to it with respect to any outstanding
series of debt securities, give the holders of that class or series notice of the default if uncured or not waived. However, the
trustee may withhold this notice if it determines in good faith that the withholding of this notice is in the interest of those
holders, except that the trustee may not withhold this notice in the case of a payment default. The term “default”
for the purpose of this provision means any event that is, or after notice or lapse of time or both would become, an event of
default with respect to debt securities of that series.
Subject
to the provisions of the Trust Indenture Act of 1939, as amended (the “TIA”) requiring the trustee during the continuance
under an event of default under the indenture to act with the requisite standard of care, a trustee is not obligated to exercise
any of its rights or powers under the applicable indenture at the request or direction of any of the holders of debt securities,
unless the holders have offered to the trustee reasonable security and indemnity. The indenture will provide that the holders
of a majority in principal amount of outstanding debt securities of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the trustee, or exercising any trust or other power conferred on the trustee if the
direction would not conflict with any rule of law or with the indenture. However, the trustee may take any other action that it
deems proper which is not inconsistent with any direction and may decline to follow any direction if it in good faith determines
that the directed action would involve it in personal liability.
The
indenture will include a covenant that we will file annually with the trustee a certificate of no default, or specifying any default
that exists.
Modification
of the Indenture
We
and the trustee may modify the indenture without the consent of the holders for limited purposes, including adding to our covenants
or events of default, establishing forms or terms of debt securities, curing ambiguities and other purposes which do not adversely
affect the holders in any material respect.
We
and the trustee may make modifications and amendments to the indenture with the consent of the holders of a majority in principal
amount of the outstanding debt securities of all affected series. However, unless otherwise specified in the applicable prospectus
supplement, without the consent of each affected holder, no modification may:
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change
the stated maturity of any debt security;
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reduce
the principal, premium, if any, or rate of interest on any debt security;
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change
any place of payment or the currency in which any debt security is payable;
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impair
the right to enforce any payment after the stated maturity or redemption date;
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adversely
affect the terms of any conversion right;
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reduce
the percentage of holders of outstanding debt securities of any series required to consent to any modification, amendment
or waiver under an indenture;
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change
any of our obligations, with respect to outstanding debt securities of a series, to maintain an office or agency in the places
and for the purposes specified in an indenture for the series;
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change
the provisions in the indenture that relate to its modification or amendment other than to increase the percentage of outstanding
debt securities of any series required to consent to any modification or waiver under an indenture; or
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add
guarantors with respect to any or all of the debt securities.
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Regarding
the Trustee
The
indenture provides that, except during the continuance of an event of default, the trustee will perform only such duties as are
specifically set forth in the indenture. During the existence of an event of default, the trustee will exercise such rights and
powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own affairs.
The
indenture and provisions of the TIA that are incorporated by reference therein contain limitations on the rights of the trustee,
should it become one of our creditors, to obtain payment of claims in certain cases or to realize on certain property received
by it in respect of any such claim as security or otherwise. The trustee is permitted to engage in other transactions with us
or any of our affiliates; provided, however, that if it acquires any conflicting interest (as defined in the indenture or in the
TIA), it must eliminate such conflict or resign.
No
Personal Liability of Directors, Officers, Employees or Stockholders
None
of our past, present or future directors, officers, employees or stockholders, as such, will have any liability for any of our
obligations under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations
or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is
part of the consideration for the issue of the debt securities. However, this waiver and release may not be effective to waive
liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing
Law
The
indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the debt
securities, will be governed by the laws of the State of New York (without regard to the conflicts of laws’ provisions thereof
other than Section 5-1401 of the General Obligations Law).
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of debt securities, common stock, preferred stock, or other securities. Warrants may be issued
independently or together with debt securities, common stock, preferred stock or other securities offered by any prospectus supplement
and may be attached to or separate from any such offered securities. Series of warrants may be issued under a separate warrant
agreement entered into between us and a bank or trust company, as warrant agent, all as will be set forth in the prospectus supplement
relating to the particular issue of warrants. The warrant agent would act solely as our agent in connection with the warrants
and would not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial owners
of warrants.
In
addition, the prospectus supplement relating to units will describe the terms of any warrants we issue, including as applicable:
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the
title of the warrants;
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the
title and aggregate number of shares of debt securities, common stock, preferred stock or other securities purchasable upon
exercise of the warrants;
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the
exercise price;
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the
aggregate number of warrants issued;
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the
date on which the right to exercise the warrants will commence and the date on which the warrants will expire;
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a
discussion of certain U.S. federal income tax considerations applicable to an investment in the warrants; and
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any
other terms of the warrants, including terms, procedures and limitations relating to the distribution, exchange and exercise
of the warrants.
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You
should refer to the provisions of the warrant agreement that will be filed with the SEC in connection with the offering of warrants
for the complete terms of the warrant agreement.
Each
warrant will entitle the holder thereof to purchase such number of shares of common stock or other securities at such exercise
price as shall be set forth in, or calculable from, the prospectus supplement relating to the warrants, which exercise price may
be subject to adjustment upon the occurrence of certain events as set forth in such prospectus supplement. After the close of
business on the expiration date, or such later date to which such expiration date may be extended by us, unexercised warrants
will become void. The place or places where, and the manner in which, warrants may be exercised shall be specified in the prospectus
supplement relating to such warrants.
Prior
to the exercise of any warrants, holders of such warrants will not have any rights of holders of the securities purchasable upon
such exercise, including the right to receive payments of dividends, or the right to vote such underlying securities.
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more debt securities, shares of common
stock or preferred stock, warrants or any combination of such securities. In addition, the prospectus supplement relating to units
will describe the terms of any units we issue, including as applicable:
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the
designation and terms of the units and the securities included in the units;
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any
provision for the issuance, payment, settlement, transfer or exchange of the units;
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the
date, if any, on and after which the units may be transferable separately;
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whether
we will apply to have the units traded on a securities exchange or securities quotation system;
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any
material United States federal income tax consequences; and
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how,
for United States federal income tax purposes, the purchase price paid for the units is to be allocated among the component
securities.
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DESCRIPTION
OF RIGHTS
General
We
may issue rights to purchase debt securities, preferred stock, common stock or depositary shares. These rights may be issued independently
or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the rights
in such offering. In connection with any offering of such rights, we may enter into a standby arrangement with one or more underwriters
or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining
unsubscribed for after such offering.
Each
series of rights will be issued under a separate rights agreement which we will enter into with a bank or trust company, as rights
agent, all as set forth in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with
the certificates relating to the rights and will not assume any obligation or relationship of agency or trust with any holders
of rights certificates or beneficial owners of rights. We will file the rights agreement and the rights certificates relating
to each series of rights with the SEC, and incorporate them by reference as an exhibit to the registration statement of which
this prospectus is a part on or before the time we issue a series of rights.
If
we offer any series of rights, certain terms of that series of rights will be described in the applicable prospectus supplement,
including, without limitation, the following:
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the
title of the rights;
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the
date of determining the stockholders entitled to the rights distribution;
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the
title and aggregate number of shares of common stock or preferred stock purchasable upon exercise of the rights;
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the
exercise price;
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the
aggregate number of rights issued;
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the
date, if any, on and after which the rights will be separately transferable;
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the
date on which the right to exercise the rights will commence and the date on which the right will expire;
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a
discussion of certain U.S. federal income tax considerations applicable to an investment in the rights; and
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any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise
of the rights.
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Exercise
of Rights
Each
right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock or other securities
at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of
business on the expiration date for the rights provided in the applicable prospectus supplement. After the close of business on
the expiration date, all unexercised rights will be void.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the shares of common stock or other securities purchasable upon exercise
of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities
directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods,
including pursuant to standby underwriting arrangements, as described in the applicable prospectus supplement.
PLAN
OF DISTRIBUTION
We
may offer the securities directly to one or more purchasers, through agents, or through underwriters or dealers designated from
time to time or in any other manner permitted by law. We may distribute the securities from time to time in one or more transactions
at a fixed price or prices (which may be changed from time to time), at market prices prevailing at the times of sale, at prices
related to these prevailing market prices or at negotiated prices. We may offer securities in the same offering, or we may offer
securities in separate offerings. The applicable prospectus supplement will describe the terms of the offering of the securities,
including:
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the
terms of the securities to which the prospectus supplement relates;
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the
name or names of any underwriters;
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the
purchase price of the securities and the proceeds to be received from the sale;
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any
underwriting discounts and other items constituting underwriters’ compensation; and
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any
discounts or concessions allowed or reallowed or paid to dealers.
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If
underwriters are used in the sale, the securities will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of
sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters
or by underwriters without a syndicate. The obligations of the underwriters to purchase securities will be subject to the conditions
precedent agreed to by the parties and the underwriters will be obligated to purchase all the securities of a class or series
if any are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Underwriters
or agents may make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed
to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities Act of 1933, as amended
(the “Securities Act”).
Securities
may be sold directly by us or through agents designated by us from time to time. Any agent involved in the offer or sale of the
securities in respect of which this prospectus is delivered will be named, and any commissions payable by us to any agent will
be set forth, in the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any agent will be acting
on a best efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by eligible institutions to purchase securities from us at the public offering
price set forth in the prospectus supplement under delayed delivery contracts providing for payment and delivery on a specified
date in the future. The conditions to these contracts and the commissions payable for solicitation of these contracts will be
set forth in the applicable prospectus supplement.
Agents
and underwriters may be entitled to indemnification by us against some civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which the agents or underwriters may be required to make relating to these liabilities.
Agents and underwriters may be customers of, engage in transactions with, or perform services for, us in the ordinary course of
business.
Each
class or series of securities other than the common shares will be a new issue of securities with no established trading market.
Any underwriter may make a market in these securities, but will not be obligated to do so and may discontinue any market making
at any time without notice. There may be limited liquidity in the trading market for any such securities.
LEGAL
MATTERS
Kutak
Rock LLP, Denver, Colorado, will pass upon certain legal matters relating to the issuance and sale of the securities being offered
by this prospectus.
EXPERTS
The
consolidated financial statements of U.S. Energy Corp. as of December 31, 2017, and for the year then ended, incorporated by reference
in this Registration Statement on Form S-3 by reference from U.S. Energy Corp.’s Annual Report on Form 10-K for the year
ended December 31, 2017, have been audited by Moss Adams LLP, an independent registered public accounting firm, as stated in their
report which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting and auditing.
The
consolidated financial statements of U.S. Energy Corp. as of December 31, 2016 and for each year in the two year period ended
December 31, 2016 have been incorporated by reference herein in reliance upon the reports of Hein & Associates LLP, independent
registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting
and auditing.
Estimates
of historical oil and natural gas reserves and related information of the Company as of December 31, 2017, December 31, 2016 and
December 31, 2015 included herein are based upon engineering studies prepared by Jane E. Trusty, PE an independent petroleum engineer
and State of Texas Licensed Professional Engineer (License #60812). Such estimates and related information have been so included
in reliance upon the authority of Ms. Trusty as an expert in such matters.
WHERE
YOU CAN FIND MORE INFORMATION
We
file and furnish annual, quarterly and current reports and other information, including proxy statements, with the SEC. You may
read and copy any document we file or furnish with the SEC at the SEC’s Public Reference Room located at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public
Reference Room. Our SEC filings are available to the public on the SEC’s website at www.sec.gov. Our SEC filings are also
available through the “Investor Info” section of our website at www.usnrg.com.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information
to you by referring you to another document that we have filed with the SEC. You should read the information incorporated by reference
because it is an important part of this prospectus. Information in this prospectus supersedes information incorporated by reference
that we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically
update and supersede the information in this prospectus. We incorporate by reference the following information or documents that
we have filed with the SEC:
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our
Annual Report on Form 10-K and Form 10-K/A for the year ended December 31, 2017, filed with the SEC on March 28, 2018 and
April 25, 2018 respectively;
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our
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2018 filed with the SEC on May 14, 2018;
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Our
Current Reports on Form 8-K, filed on January 5, 2017, March 6, 2017, March 28, 2017, May 1, 2017, May 8, 2017, May 23, 2017,
July 3, 2017, July 21, 2017, September 22, 2017, October 5, 2017, October 10, 2017, November 7, 2017, November 17, 2017, December
29, 2017, January 5, 2018, May 4, 2018, and June 4, 2018;
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the
information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December
31, 2017 from our proxy statement on Schedule 14A, filed with the SEC on April 26, 2018; and
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the
description of our capital stock contained in our registration statement on Form 10 filed under the Securities Exchange Act
of 1934 (the “Exchange Act”) with the SEC on January 29, 1973, as amended and restated in the Form 8-K filed with
the SEC on April 7, 2014, as the same may be further amended from time to time.
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All
reports and other documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this prospectus and prior to the termination of this offering shall be deemed to be incorporated by reference into this prospectus
and shall be a part hereof from the date of filing of such reports and documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any
subsequently filed document that also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces
such statement. Any statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced,
to constitute a part of this prospectus. None of the information that we disclose under Items 2.02 or 7.01 of any Current Report
on Form 8-K or any corresponding information, either furnished under Item 9.01 or included as an exhibit thereto, that we may
from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this prospectus, except
as otherwise expressly set forth in the relevant document. Subject to the foregoing, all information appearing in this prospectus
is qualified in its entirety by the information appearing in the documents incorporated by reference.
We
will provide without charge upon written or oral request, a copy of any or all of the documents which are incorporated by reference
into this prospectus. Requests should be directed to:
U.S.
Energy Corp.
Attention: Corporate Secretary
950 S. Cherry Street, Suite 1515
Denver, Colorado 80246
303-993-3200
Except
as provided above, no other information, including information on our internet site, is incorporated by reference in this prospectus.
WARRANTS
UNITS
RIGHTS
PROSPECTUS
PART
II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the fees and expenses in connection with the issuance and distribution of the securities covered by
this registration statement, other than underwriting discounts and commissions to be paid by us. All such expenses are estimates,
other than the registration fee payable to the SEC, and will be borne by the Registrant.
SEC Registration Fee
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$
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[11,620
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Legal Fees and Expenses
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*
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Accountant Fees and Expenses
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*
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Listing Fee
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*
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Transfer and Disbursement Agent Fees
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*
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Printing Cost
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*
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Miscellaneous
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*
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Total
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*
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*
These fees and expenses will be determined based on the number of issuances and amount and type of securities issued. Accordingly, they cannot be estimated at this time. An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement.
Item
15. Indemnification of Directors and Officers
Our
directors and officers are indemnified as provided by the Wyoming Business Corporation Act (“WBCA”) and our Bylaws.
Our
Bylaws provide that we will indemnify our officers and directors, including the advancement of expenses, to the fullest extent
permitted by and in the manner permissible under the WBCA, and that we may maintain insurance, at our expense, to protect against
any expense, liability or loss on our behalf or on behalf of our officers, directors, employees or agents, whether or not we would
have the power to indemnify such person against such expense, liability or loss under the WBCA.
The
WBCA provides that a corporation shall indemnify any director or officer of a corporation against expenses, including attorneys’
fees, actually and reasonably incurred by him or her in connection with the defense of any proceeding to which he or she was a
party because he or she was a director or officer of the corporation to the extent that such director or officer has been wholly
successful on the merits or otherwise.
The
WBCA provides that a corporation may 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, except an action by
or in the right of the corporation, by reason of the fact that he is or was a director or officer of the corporation against expenses,
including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection
with the action, suit or proceeding if he: (a) is not liable pursuant to the WBCA; or (b) acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was unlawful. Indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals
there from, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that
in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
Item
16. Exhibits and Financial Statement Schedules
See
“Exhibit Index” attached hereto and incorporated herein by reference.
Item
17. Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided,
however
, that paragraphs (i), (ii) and (iii) above do not apply if the registration statement is on Form S-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
Securities and Exchange 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.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1) (i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
(5) That,
for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to
by the undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant
or its respective securities provided by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act), that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue
(d) The
undersigned Registrant hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared effective.
(e) The
undersigned Registrant hereby undertakes that for the purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(f) 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 in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 Denver, State of Colorado, on July 27, 2018.
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U.S.
Energy Corp.
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/s/
David A. Veltri
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David
A. Veltri
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Chairman,
Chief Executive Officer, and President
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POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints David A. Veltri his true and lawful agent, proxy and attorney-in-fact,
with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to (i)
act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments)
to this registration statement together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates,
instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file
any supplement to any prospectus included in this registration statement or any such amendment and (iv) take any and all actions
which may be necessary or appropriate to be done, as fully for all intents and purposes as he might or could do in person, hereby
approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his substitutes may lawfully do
or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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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/s/
David A. Veltri
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Chairman,
Director, Chief Executive
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David
A. Veltri
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Officer,
and President
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July
27, 2018
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/s/
Ryan L. Smith
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Chief
Financial Officer
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Ryan
L. Smith
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(Principal
Financial Officer)
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July
27, 2018
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/s/
J. Weldon Chitwood
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J.
Weldon Chitwood
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Director
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July
27, 2018
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/s/
John G. Hoffman
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John
G. Hoffman
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Director
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July
27, 2018
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/s/
Javier F. Pico
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Javier
F. Pico
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Director
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July
27, 2018
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EXHIBIT
INDEX
(1)
To be filed by amendment or by a Current Report on Form 8-K if the registrant enters into any such agreement or issues any
such instrument in connection with the offer of any securities registered hereunder.
(2)
To be incorporated herein by reference from a subsequent filing in accordance with section 305(b)(2) of the Trust Indenture
Act.
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