Table of Contents
As filed with the Securities and Exchange Commission on August 5, 201111, 2017
Registration No. 333- 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,Washington, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT UNDER
UNDER
THE SECURITIES ACT OF 1933
______________________
BROADWIND ENERGY, INC.
(Exact name of registrant as specified in its charter)
Delaware
|
| 3360
|
Delaware | 001-34278 | 88-0409160 |
(State or Other Jurisdiction of
Incorporation or Organization) | (Commission File Number) | (IRS Employer Identification No.) |
Incorporation) | | (Primary Standard Industrial
Classification Code Number)
| | (IRS Employer
Identification No.)
|
47 East Chicago3240 South Central Avenue Suite 332
Naperville, IL 60540Cicero, Illinois 60804
(630) 637-0315Telephone: (708) 780-4800
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
J.D. Rubin
Vice President, General Counsel and Secretary
Broadwind Energy, Inc.
47 East Chicago Avenue, Suite 332
Naperville, IL 60540
(630) 637-0315
(Name, address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Stephanie K. Kushner
President, Chief Executive Officer
Jason L. Bonfigt
Vice President, Chief Financial Officer
Broadwind Energy, Inc.
3240 South Central Avenue
Cicero, Illinois 60804
Telephone: (708) 780-4800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CopiesCopy to:
Michele C. Kloeppel
Andrew J. Klinghammer
Thompson Coburn LLP
One U.S. Bank Plaza
Saint Louis, Missouri 63101
Telephone: (314) 552-6000
Facsimile: (314) 552-7000
Robert L. Verigan
Andrea L. Reed
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
(312) 853-7000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:box. o☐
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: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. o☐
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. o☐
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. o☐
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. o☐
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, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer” andfiler,” “smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ Accelerated filer ☐ Non-accelerated filer ☐ Smaller reporting company ☒
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for comply with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Large accelerated filer o
| | Accelerated filer x
| | Non-accelerated filer o
| | Smaller reporting company o
|
| | |
Title of each class of securities to be registered | (Do not check if aAmount to be Registered/Proposed Maximum Offering Price Per Unit/Proposed Maximum Aggregate Offering Price (1)
| smaller reporting company)Amount of registration fee
|
Common Stock, par value $0.001 per share | (1)(2) | |
Preferred Stock, par value $0.001 per share | (1)(2) | |
Warrants | (1) | |
Stock Purchase Contracts | (1) | |
Stock Purchase Units | (1) | |
Total | $50,000,000 (3) | $5,795 (4) |
Calculation1) An unspecified number of Registration Feesecurities or aggregate principal amount, as applicable, is being registered as may from time to time be offered at unspecified prices.
(2) Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan.
Title of Securities to
be Registered | | Amount to be
Registered (1) | | Proposed Maximum
Offering Price Per
Unit (2) | | Proposed Maximum
Aggregate Offering
Price (1) | | Amount of
Registration Fee (3) | |
Common stock, par value $.001 per share | | | | | | | | | |
Preferred stock, par value $.001 per share | | | | | | | | | |
Debt Securities (4) | | | | | | | | | |
Warrants (5) | | | | | | | | | |
Stock Purchase Contracts (6) | | | | | | | | | |
Stock Purchase Units (7) | | | | | | | | | |
Total aggregate amount of securities to be registered | | $ | 75,000,000 | | — | | $ | 75,000,000 | | $ | 8,708 | |
| | | | | | | | | | | | |
(1) This(3) Estimated solely for the purposes of calculating the registration statement covers such indeterminate number offee. No separate consideration will be received for shares of common stock that are issued upon conversion of preferred stock debtor upon exercise of common stock warrants registered hereunder. The aggregate maximum offering price of all securities warrants, stock purchase contracts and stock purchase units ofissued by the registrant with an aggregate initial offering price not to exceed $75 million. The securities registered hereunder are to be issued from time to time and at prices to be determined. The securities registered hereunder also include securities that may be purchased by underwriters to cover over-allotments, if any.
(2) Not specified as to each class of securities to be registered hereunder pursuant to General Instruction II.E of Form S-3.this registration statement will not exceed $50,000,000.
(3) Calculated pursuant to(4) The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of 1933.
(4) Also includes such indeterminate number or amount of debt securities, common stock, preferred stock, warrants, stock purchase contracts and stock purchase units1933, as may be issued upon conversion or exchange of securities registered hereby, for which no additional consideration will be received by us.
(5) Warrants may be sold separately or together with any of the securities registered hereby and may be exercisable for debt securities, preferred stock or common stock registered hereby.
(6) Stock purchase contracts may be issued separately or as stock purchase units.
(7) Stock purchase units may consist of a stock purchase contract and debt securities or preferred stock registered under this registration statement or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase the common stock or preferred stock under the stock purchase contracts.amended.
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, as amended or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
PRELIMINARY PROSPECTUS (Subject to Completion) dated August 5, 2011
The information contained in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities andnor does it is not solicitingseek an offer to buy these securities in any statejurisdiction where the offer or sale is not permitted.
Subject to Completion, Dated August 11, 2017
PRELIMINARY PROSPECTUS
Dated ______________, 2017
$50,000,000
$75,000,000
BROADWIND ENERGY, INC.
Common Stock
Preferred Stock
Warrants
Stock Purchase Contracts
Stock Purchase Units
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
We may offer and sell up to $50,000,000 in the aggregate of the securities identified above from time to time in one or more offerings, common stock, preferred stock, debt securities, warrants, stock purchase contracts and stock purchase units for an aggregate initial offering price not exceeding $75,000,000 from time to time in amounts, at prices and on terms that will be determined atofferings. This prospectus provides you with a general description of the time of any such offering.securities.
Each time we offer and sell securities, using this prospectus, we will provide specific terms of the offering in a supplement to this prospectus.prospectus that contains specific information about the offering and the amounts, prices and terms of the securities. The prospectus supplementsupplements 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.with respect to that offering. You should carefully read this prospectus and anythe applicable prospectus supplement, as well as the documents incorporated by reference into this prospectus carefullyor the applicable prospectus supplement before you invest.invest in any of our securities.
We may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods or in any manner specified in a prospectus supplement. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
INVESTING IN OUR SECURITIES INVOLVES SUBSTANTIAL RISKS. SEE “RISK FACTORS” BEGINNING ON PAGE 3 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our common stock is listed on the NASDAQ Global Select Market under the symbol “BWEN.” On August 4, 2011,10, 2017, the last reported sale price of our common stock was $1.34$3.40 per share. We have not determined whether we will list any of the other securities we may offer on any exchange or over-the-counter market. If we decide to seek the listing of any such securities, the prospectus supplement will identify the exchange or market.
Our principal executive office is located at 47 East Chicago Avenue, Suite 332, Naperville, IL 60540. Our phone number is (630) 637-0315 and our website address is www.broadwindenergy.com. Information contained on our website does not constitute part of this prospectus.
Investing in our securities involves substantial risks. You should carefully consider the information referenced to under “Risk Factors” beginning on page 1.
This prospectus may not be used to offer to sell any securities unless accompanied by a prospectus supplement.
We will sell securities offered using this prospectus directly to investors, through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus. If any underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such underwriters and any applicable commissions or discounts will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined ifpassed upon the adequacy or accuracy of this prospectus is truthful or complete.prospectus. Any representation to the contrary is a criminal offense.
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ABOUT THIS PROSPECTUS
This prospectus incorporates by reference important business and financial information about us that is not included in or delivered with this document. This information, other than exhibits to documents that are not specifically incorporated by reference in this prospectus, is available to you without charge upon written or oral request to: Broadwind Energy, Inc., 47 East Chicago Avenue, Suite 332, Naperville, Illinois, 60540, Attention: Corporate Secretary, telephone number (630) 637-0315.
This prospectus is part of a shelf registration statement that we filed with the U.S. Securities and Exchange Commission, (the “SEC”). Underor the SEC, using a “shelf” registration process. By using a shelf registration process,statement, we may offersell securities from time to time and in one or more offerings any combinationup to a total dollar amount of the securities$50,000,000 as described in this prospectus having an aggregate initial offering price of up to $75,000,000.
This prospectus provides you with a general description of the securities we may offer.prospectus. Each time that we offer and sell securities, using this prospectus, we will provide you with a prospectus supplement to this prospectus that describescontains specific information about the securities being offered and sold and the specific amounts and pricesterms of the securities we offer.that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement may also may add, update or change information contained in this prospectus. Pleaseprospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the prospectus supplement. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus supplement, together with the documents incorporated and deemed to be incorporated by reference in this prospectus and the additional information described below under the heading “Where You Can Find More Information.Information; Incorporation by Reference.” Unless we state otherwise, “Broadwind Energy,” “Broadwind,” the “Company,” “we,” “us” and “our” refer to Broadwind Energy, Inc. and its wholly-owned subsidiaries.
We have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should rely only onassume that the information incorporated or deemed to be incorporated by reference or providedappearing in this prospectus and the applicable prospectus supplement. We have not authorized anyone elsesupplement to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information in this prospectus or any applicable prospectus supplement is accurate as of any date other than the date on theits respective cover, and that any information incorporated by reference is accurate only as of the applicable document.date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, and results of operations and prospects may have changed since that date.those dates. This prospectus does not constitute an offer to sellincorporates by reference, and any prospectus supplement or a solicitation of an offer to buyfree writing prospectus may contain and incorporate by anyone in any jurisdiction in which such offer or solicitation is not authorized, or in which the person is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation.
Information containedreference, market data and industry statistics and forecasts that are based on our website does not constitute a part of this prospectus.
We obtained the industry, market and competitive position data used in this prospectus from our own research, internal surveys and studies conducted by third parties, independent industry associations or general publications and other publicly available information. Independent industry publications and surveys generally state that they have obtained information fromAlthough we believe these sources believed to beare reliable, butwe do not guarantee the accuracy andor completeness of suchthis information and we have not independently verified this information. ForecastsAlthough we are not aware of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those referenceddiscussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any related free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information. Information contained on our website does not constitute part of this prospectus.
ii
THE COMPANY
Broadwind provides technologically advanced high-value productsEnergy is a precision manufacturer of structures, equipment and services to energy, miningcomponents for clean tech and infrastructure sector customers, primarily in the United States.other specialized applications. Our most significant presence is within the wind energy industry in the United States of America (the “U.S.”), although we have diversified into other clean tech and industrial markets in order to improve our capacity utilization. Within the U.S. wind energy industry, where we believe we are the only independent company that offers our breadth ofprovide products and servicesprimarily to the market. Our product and service portfolio provides our customers, including wind turbine manufacturers, wind farm developers and wind farm operators, with access to a broad array of component and service offerings.manufacturers. Outside of the wind energy market, we providethe Company provides precision gearing, and specialty weldments and fabrication, kitting, and assemblies of industrial systems to industriala broad range of customers particularly in the energy,for oil and gas (“O&G”), mining and infrastructure sectors.other industrial applications.
For additional information concerningOn February 1, 2017, we acquired Red Wolf Company, LLC (“Red Wolf”), a fabricator, kitter and assembler of industrial systems primarily supporting the global gas turbine market. The purchase price for the acquisition consisted of approximately $16,500,000 in cash paid at closing, and up to $9,900,000 in contingent consideration payable in cash and, at the our election, up to 50% in the form of shares of our common stock. The Red Wolf acquisition enables us to expand our market reach, competencies, capabilities and customer relationships. The Red Wolf acquisition aligns with our new three year growth strategy approved by our Board of Directors (the “Board”) in late 2016 to expand and diversify our business please refer tothrough organic growth and strategic bolt-on acquisitions. Red Wolf’s operations are being reported in our consolidated financial statements in a new “Process Systems” segment.
We were incorporated in 1996 in Nevada as Blackfoot Enterprises, Inc., and through a series of subsequent transactions, became Broadwind Energy, Inc., a Delaware corporation, in 2008. Through several acquisitions in 2007 and 2008, we focused on expanding upon our core platform as a wind tower component manufacturer, established our “Gearing” segment, and developed our industrial weldment capabilities.
Our authorized capital stock currently consists of 30,000,000 shares of common stock and 10,000,000 shares of preferred stock. Our common stock is listed on the documents incorporated by reference that are listedNASDAQ Global Select Market under the caption “Incorporation of Certain Information by Reference.symbol “BWEN.”
RISK FACTORSOur principal corporate headquarters are located at 3240 South Central Avenue, Cicero, Illinois 60804. Our website address is www.bwen.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus.
Investing
RISK FACTORS
Investment in ourany securities involves a high degree of risk. Before making an investment decision, you should carefully consider any risk factors set forth in the applicable prospectus supplement and the documents incorporated by reference intooffered pursuant to this prospectus and the applicable prospectus supplement as well asinvolves risks. You should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, and all other information we includecontained or incorporateincorporated by reference into this prospectus, and in the applicable prospectus supplement. Our business, financial condition or results of operations could be materially adversely affectedas updated by any of these risks. The trading price of our securities could decline due to any of these risks, and you may lose all or part of your investment. See also “Special Note Regarding Forward-Looking Statements” below.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements made or incorporated by reference in this prospectus are “forward-looking statements”—that is, statements related to future, not past, events— within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and as defined in Section 21E ofsubsequent filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the risk factors and other information contained in the applicable prospectus supplement before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any prospectus supplement, including the documents incorporated by reference herein and therein, and any free writing prospectus that reflectwe have authorized for use in connection with this offering contain forward-looking statements concerning our current expectations regarding our future growth, results ofbusiness, operations cash flows,and financial performance and business prospects, and opportunities,condition, as well as assumptions made by,our plans, objectives and information currently availableexpectations for our business operations and financial performance and condition. Any statements contained herein that are not statements of historical facts may be deemed to our management. Forward-looking statements include any statement that does not directly relate to a current or historical fact. We have tried tobe forward-looking statements. In some cases, you can identify forward-looking statements by using wordsterminology such as “aim,” “anticipate,” “assume,” “believe,” “contemplate,” “continue,” “could,” “due,” “estimate,” “expect,” “goal,” “intend,” “will,“may,” “objective,” “plan,” “predict,” “potential,” “positioned,” “seek,” “should,” “may,“target,” “plan”“will,” “would,” and other similar expressions butthat are predictions of or indicate future events and future trends, or the negative of these wordsterms or other comparable terminology. These forward-looking statements include, but are not limited to, statements about:
• state, local and federal regulatory frameworks affecting the exclusive meansindustries in which we compete, including the wind energy industry, and the related extension, continuation or renewal of identifying forward-looking statements.federal tax incentives and grants and state renewable portfolio standards;
• our customer relationships and our substantial dependence on a few significant customers and our efforts to diversify our customer base and sector focus and leverage relationships across business units;
• our ability to continue to grow our business organically and through acquisitions;
• the sufficiency of our liquidity and alternate sources of funding, if necessary;
• our ability to realize revenue from customer orders and backlog;
•our ability to operate our business efficiently, manage capital expenditures and costs effectively, and generate cash flow;
• the economy and the potential impact it may have on our business, including our customers;
• the state of the wind energy market and other energy and industrial markets generally and the impact of competition and economic volatility in those markets;
• the effects of market disruptions and regular market volatility, including fluctuations in the price of oil, gas and other commodities;
• the effects of the recent change of administrations in the U.S. federal government;
• our ability to successfully integrate and operate the business of Red Wolf and to identify, negotiate and execute future acquisitions;
• the potential loss of tax benefits if we experience an “ownership change” under Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”); and
• other risks and uncertainties including those listed under the section titled “Risk Factors.”
These statements are based on information currently available to us and are subject to various risks, uncertainties and other factors including, but not limited to, those risk factors identified in the documents incorporated by reference into this prospectus, that could cause our actual growth, results of operations, financial condition, cash flows, performance, and business prospects and opportunities to differ materially from those expressed in, or implied by, these statements. OurYou should read this prospectus and the documents incorporated by reference herein completely and with the understanding that our actual results may differ materially from what we expect as expressed or implied by our forward-looking statements. In light of the significant risks and uncertainties to which our forward-looking statements may includeare subject, you should not place undue reliance on or relate toregard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified timeframe, or at all. We discuss many of these risks in greater detail in the following: (i)documents incorporated by reference herein, including under the heading “Risk Factors.” These forward-looking statements represent our plans to continue to grow our business through organic growthestimates and integrationassumptions only as of previousthe dates of this prospectus and future acquisitions; (ii) our beliefs with respect to the sufficiencydocuments incorporated by reference herein and therein, and any free writing prospectus, as applicable, regardless of the time of delivery of this prospectus or any sale of our liquiditysecurities and, our plans to evaluate alternate sources of funding if necessary; (iii) our expectations relating to state, local and federal regulatory frameworks affecting the wind energy industry, including the extension, continuation or renewal of federal tax incentives and grants and state renewable portfolio standards; (iv) our expectations relating to construction of new facilities, expansion of existing facilities and sufficiency of our existing capacity to meet the demands of our customers and support expectations regarding our growth; (v) our plans with respect to the use of proceeds from financing activities and our ability to operate our business efficiently, manage capital expenditures and costs effectively, and generate cash flow; (vi) our beliefs and expectations relating to the economy and the potential impact it may have on our business, including our customers; (vii) our beliefs regarding the state of the wind energy market generally; and (viii) our expectations relating to the impact of pending litigationexcept as well as environmental compliance matters. You should not consider any list of such factors to be an exhaustive statement of all of the risks, uncertainties, or potentially inaccurate assumptions that could cause our current expectations or beliefs to change. Except as expressly required by the federal securities laws,law, we undertake no obligation to update such factors or torevise publicly announceany forward-looking statements, whether as a result of new information, future events or otherwise after the resultsdate of anythis prospectus. For all forward-looking statements, we claim the protection of the safe harbor for forward-looking statements contained herein to reflect future events, developments, or changed circumstances or for any other reason.in the Private Securities Litigation Reform Act of 1995.
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
Available Information
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Information filed with the SEC by us can be inspected and copied at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies of this information by mail from the Public Reference Room of the SEC at prescribed rates. Further information on the operation of the SEC’s Public Reference Room in Washington, D.C. can be obtained by calling the SEC at 1-800-SEC-0330. The SEC allowsalso maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov.
Our web site address is www.bwen.com. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus.
This prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms of the indenture and other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement at the SEC’s Public Reference Room in Washington, D.C. or through the SEC’s website, as provided above.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference” information contained in documents that we file with the SEC into this prospectus. Thisprospectus, which means that we can disclose important information to you by referring you to those documents and thatanother document filed separately with the SEC. The information included in those documentsincorporated by reference is considereddeemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus modifies or replaces that statement.
We incorporate by reference our documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of this prospectus and the termination of the offering of the securities described in this prospectus. The followingWe are not, however, incorporating by reference any documents or portions thereof, whether specifically listed below or filed in the future, that are not deemed “filed” with the SEC, including our Compensation Committee report and performance graph or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.
This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC are incorporated by reference into this prospectus, unless otherwise indicated:SEC:
·• Our Annual Report on Form 10-K for the year ended December 31, 2010;2016, filed with the SEC on February 23, 2017;
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·• Our Quarterly ReportReports on Form 10-Q for the quarterquarters ended March 31, 2011;2017 and June 30, 2017, filed with the SEC on May 2, 2017 and August 1, 2017, respectively;
• Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 14, 2017;
·• Our Current Reports on Form 8-K filed with the SEC on January 10, 2011,30, 2017, February 1, 2017 (and as amended on March 10, 2011, March 29, 201124, 2017), February 27, 2017, April 5, 2017, April 28, 2017, July 31, 2017 and May 9, 2011 (item 5.07 only); andAugust 11, 2017;
·• The description of our common stock as set forth in our Registration Statement on Form 8-A filed with the SEC on April 8, 2009 (File No. 001-34278).
In addition, all documents we subsequently file with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d)Section 12 of the Exchange Act, afterincluding any amendment thereto or report filed for the initial filingpurpose of updating such description; and
• The description of our Series A Junior Participating Preferred Stock Purchase Rights contained in our registration statement on Form 8-A filed with the SEC on February 13, 2013 (File No. 001-34278) pursuant to Section 12 of the registration statement relatedExchange Act and the Amendment to this prospectus and prior toForm 8-A filed with the terminationSEC on February 8, 2016, including any other amendment thereto or report filed for the purpose of the offering or offerings of the securities described in this prospectus, shall be deemed to be incorporated by reference herein and to be part of this prospectus from the respective dates of filing ofupdating such documents. description.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof or of the related prospectus supplementthis registration statement to the extent that a statement contained herein or in aany other subsequently filed document which is also incorporated or deemed to be incorporatedby reference herein modifies or supersedes such statement.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration Any such statement on Form S-3 under the Securities Act, with respectso modified or superseded shall not be deemed, except as so modified or superseded, to the securities offered by this prospectus. This prospectus, filed asconstitute a part of thethis registration statement, does not contain allstatement.
You may request a free copy of any of the information set forth in the registration statement or the exhibits and schedules thereto as permitteddocuments incorporated by the rules and regulations of the SEC. For further information about us and our securities, you should refer to the registration statement. Statements containedreference in this prospectus concerning(other than exhibits, unless they are specifically incorporated by reference in the contents of any contractdocuments) by writing or any other document are not necessarily complete; reference is made in each instancetelephoning us at the following address: 3240 South Central Avenue, Cicero, Illinois 60804, Attention: Corporate Secretary, telephone: number (708) 780-4800. Exhibits to the copy of such contract or any other document filed as an exhibit to the registration statement. Each such statement is qualified in all respects by such reference to such exhibit.
Wefilings will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the reports and documents thatnot be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus contained in the registration statement but not delivered with the prospectus. We will provide these documents, at no cost to the requestor, upon written or oral request directed to: Broadwind Energy, Inc., 47 East Chicago Avenue, Suite 332, Naperville, Illinois, 60540, Attention: Corporate Secretary, telephone number (630) 637-0315.
We file annual, quarterly, and current reports, proxy statements and other information with the SEC. All documents we file with the SEC, including the registration statement of which thisany accompanying prospectus forms a part and the exhibits thereto may be inspected, without charge, and copies may be obtained at prescribed rates, at the public reference facility maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. The registration statement and other information filed by us with the SEC, including the documents incorporated by reference in the prospectus, are also available at the SEC’s website at http://www.sec.gov, as well as on our website, www.broadwindenergy.com. This reference to our website is an inactive textual reference only and is not a hyperlink. The contents of our website are not part of this prospectus, and you should not consider the contents of our website in making an investment decision with respect to our securities.supplement.
After the offering or offerings contemplated by this prospectus, we will continue to be subject to the proxy solicitation rules, annual and periodic reporting requirements, restrictions of stock purchases and sales by affiliates and other requirements of the Exchange Act. We will furnish our stockholders with annual reports containing audited financial statements certified by independent auditors and quarterly reports containing unaudited financial statements for the first three quarters of each fiscal year.
USE OF PROCEEDS
Unless we stateExcept as otherwise provided in thean applicable prospectus supplement, we expect towill use the net proceeds we receive from the sale of the securities covered by this prospectus for general corporate purposes, includingwhich may include acquisitions, working capital, capital expenditures working capital,and repayment or reductionrefinancing of long-term and short-term debt andall or a portion of our debt.
We have not yet determined the financingamount or timing of acquisitions. The net proceeds may be invested temporarily in short-term marketable securities or applied to repay short-term debt until they are used for their stated purposes.
RATIOS
Our deficiency of earnings to fixed chargesthe expenditures for each of the periodscategories listed above and these expenditures may vary significantly depending on a variety of factors. As a result, unless otherwise indicated are set forth below (dollars in thousands). The information set forth below should be read together with the financial statementsapplicable prospectus supplement, our management will retain broad discretion in the allocation and the accompanying notes and “Management’s Discussion and Analysisuse of Financial Condition and Resultsthe net proceeds of Operations” included in our Annual Report on Form 10-K for the year ended December 31, 2010 and in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2011, incorporated by reference into this prospectus.
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| | Three Months Ended
March 31, | | Year Ended December 31, | |
| | 2011 | | 2010 | | 2009 | | 2008 | | 2007 | | 2006 | |
Deficiency of earnings to fixed charges | | $4,030 | | $69,963 | | $108,397 | | $24,395 | | $4,419 | | $2,735 | |
Ratio of earnings to fixed charges | | - | | - | | - | | - | | - | | - | |
This table also sets forth our ratio of earnings to fixed charges on a historical basis for the periods indicated. The ratios are calculated by dividing losses by fixed charges, which resulted in a negative ratio for all periods indicated. For the purposes of computing the ratio of earnings to fixed charges, losses consist of loss before income taxes plus fixed charges. Fixed charges consist of interest expense, debt cost amortization and that portion of rental expense we deem to represent interest. The estimate of interest within rental expense is estimated to be one-third of rental expense. Our earnings and fixed charges include the earnings and fixed charges of Broadwind and its subsidiaries considered as one enterprise.
DESCRIPTION OF CAPITAL STOCK
The following information describes the Company’s capital stock and the provisions of the Company’s certificate of incorporation and bylaws. This description is only a summary. You should read and refer to the Company’s certificate of incorporation and bylaws, the forms of which have been filed with the SEC and are incorporated herein by reference. See “Where You Can Find More Information; Incorporation by Reference.”
General
Authorized Capital Stock
The Company’s authorized capital stock consists of 150,000,00030,000,000 shares of common stock, par value $0.001 per share, and 10,000,000 shares of stock, par value $0.001 per share, which may be designated as one or more series of preferred stock by resolution or resolutions providing for the issuance of such series adopted by the Board of Directors.Company’s Board.
Common Stock
Voting. The holders of common stock are entitled to one vote for each outstanding share of common stock owned by that stockholder on every matter properly submitted to the stockholders for their vote. Generally, all matters to be voted on by stockholders must be approved by a majority in voting power of the stock having voting power present in person or represented by proxy. However, questions governed expressly by provisions of the certificate of incorporation, bylaws, applicable stock exchange rules or applicable law require approval as set forth in the applicable governing document, stock exchange rule or law. The election of directors shall be by plurality vote, and there is no cumulative voting for the election of directors.
Dividend Rights. The holders of common stock will be entitled to such dividends and other distributions of cash or any other right or property as may be declared by the Board of Directors out of the assets or funds legally available for such dividends or distributions.
Liquidation Rights. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company’s affairs, holders of common stock would be entitled to share ratably, based upon the number of shares held, in assets that are legally available for distribution to stockholders after payment of liabilities. If there is any preferred stock outstanding at such time, holders of the preferred stock may be entitled to distribution and/or liquidation preferences.
Conversion, Redemption and Preemptive Rights. The Company’s certificate of incorporation provides that holders of common stock shall not have any preference, preemptive right, or right of subscription, other than to the extent, if any, the Board of Directors may determine from time to time.
Listing. OurAs of August 10, 2017, there were 15,088,578 shares of common stock is listed on the NASDAQ Global Select Market under the symbol “BWEN.”outstanding.
Preferred Stock
Our board of directorsThe Board has the authority to issue up to ten million (10,000,000)10,000,000 shares of preferred stock in one or more series and to determine the rights and preferences of the shares of any such series without stockholder approval, none of which are outstanding. Our board of directors may issue preferred stock in one or more series and has the authority to fix the designation and powers, rights and preferences and the qualifications, limitations, or restrictions with respect to each class or series of such class without further vote or action by the stockholders.stockholders, none of which are outstanding. The ability of our board of directorsthe Board to issue preferred stock without stockholder approval could have the effect of delaying, deferring or preventing a change of control of us or the removal of existing management.
If we decide to issue any preferred stock pursuant to this prospectus, we will describe in a prospectus supplement the terms of the preferred stock, including, if applicable, the following:
·• the title of the series and stated value;
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·• the number of shares of the series of preferred stock offered, the liquidation preference per share, if applicable, and the offering price;
·• the applicable dividend rate(s) or amount(s), period(s) and payment date(s) or method(s) of calculation thereof;
·• the date from which dividends on the preferred stock will accumulate, if applicable;
·• any procedures for auction and remarketing;
·• any provisions for a sinking fund;
·• any applicable provision for redemption and the price or prices, terms and conditions on which preferred stock may be redeemed;
·• any securities exchange listing;
·• any voting rights and powers;
·• whether interests in the preferred stock will be represented by depository shares;
·• the terms and conditions, if applicable, of conversion into shares of our common stock, including the conversion price or rate or manner of calculation thereof;
·• a discussion of any material U.S. federal income tax considerations;
·• the relative ranking and preference as to dividend rights and rights upon our liquidation, dissolution or the winding up of our affairs;
·• any limitations on issuance of any series of preferred stock ranking senior to or on a parity with such series of preferred stock as to dividend rights and rights upon our liquidation, dissolution or the winding up of our affairs; and
·• any other specific terms, preferences, rights, limitations or restrictions of such series of preferred stock.
Stockholders Rights Plan
On February 12, 2013, the Board adopted a Section 382 stockholders rights plan, which was subsequently amended on February 5, 2016 (as amended, the “Rights Plan”) and declared a dividend distribution of one right for each outstanding share of our common stock to stockholders of record at the close of business on February 22, 2013, Each right entitles its holder, under the circumstances described below, to purchase from us one one-thousandth of a share of our Series A Junior Participating Preferred Stock at an exercise price of $9.81 per right, subject to adjustment. The description and terms of the rights are set forth in a Section 382 Rights Agreement between us and Wells Fargo Bank, N.A., as rights agent.
The Board adopted the Rights Plan in an effort to protect shareholder value by attempting to protect against a possible limitation on Broadwind’s ability to use its net operating loss carryforwards (the “NOLs”) and certain other tax benefits to reduce potential future U.S. federal income tax obligations. If Broadwind experiences an “ownership change,” as defined in Section 382 of the Code, and the regulations promulgated by the United States Department of the Treasury thereunder (the “Treasury Regulations”), its ability to fully utilize the NOLs and certain other tax benefits on an annual basis will be substantially limited, and the timing of the usage of the NOLs and such other benefits could be substantially delayed, which could therefore significantly impair the value of those benefits.
The Rights Plan is intended to act as a deterrent to any person or group, together with its affiliates and associates, being or becoming the beneficial owner of 4.9% or more of our common stock (any such person or group is referred to as an “acquiring person”). A person shall be deemed to be a “beneficial owner” of, and shall be deemed to “beneficially own,” any securities that such person is deemed to constructively own under Section 382 of the Code and the Treasury Regulations thereunder (including pursuant to the “option” rules of Treasury Regulation Section 1.382-4), that such person would be deemed to own together with any other persons as a single “entity” under Treasury Regulations Section 1.382-3(a)(1), or that otherwise would be aggregated with securities owned by such person pursuant to Section 382 of the Code and the Treasury Regulations thereunder. The term “acquiring person” does not include:
• Broadwind;
• any subsidiary of Broadwind;
• any employee benefit plan of Broadwind or of any subsidiary of Broadwind;
• any person organized, appointed or established by Broadwind for or pursuant to the terms of any such plan;
• any grandfathered person (as defined below);
• any exempted person (as defined below);
• any person or group who becomes the beneficial owner of 4.9% or more of the outstanding common stock as a result of an exempted transaction (as defined below); or
• any person whom or which the Board in good faith determines has inadvertently acquired beneficial ownership of 4.9% or more of outstanding common stock, so long as such person promptly enters into, and delivers to Broadwind, an irrevocable commitment to divest as promptly as practicable, and thereafter divests as promptly as practicable a sufficient number of shares of common stock so that such person would no longer be a beneficial owner of 4.9% or more of outstanding common stock.
A stockholder who together with its affiliates and associates beneficially owned 4.9% or more of common stock as of February 12, 2013 is deemed not to be an acquiring person, so long as such stockholder does not acquire any additional shares of common stock without the prior written approval of Broadwind, other than pursuant to or as a result of (a) a reduction in the amount of common stock outstanding; (b) any unilateral grant of any common stock by Broadwind or (c) any issuance of common stock by Broadwind or any share dividend, share split or similar transaction effected by Broadwind in which all holders of common stock are treated equally. Such a stockholder is a “grandfathered person” for purposes of the Rights Plan.
The Board may, in its sole discretion, exempt any person or group who would otherwise be an acquiring person from being deemed an acquiring person for purposes of the Rights Plan if it determines at any time prior to the time at which the rights are no longer redeemable that the beneficial ownership of such person would not jeopardize, endanger or limit (in timing or amount) the availability of Broadwind’s NOLs and other tax benefits. Any such person or group is an “exempted person” under the Rights Plan. The Board, in its sole discretion, may subsequently make a contrary determination and such person would then become an acquiring person.
An “exempted transaction” is a transaction that the Board determines is an exempted transaction and, unlike the determination of an exempted person, such determination is irrevocable.
Initially, the rights are associated with our common stock and evidenced by common stock certificates or, in the case of uncertificated shares of common stock, the book-entry records evidencing the common stock, and are transferable with and only with the underlying shares of common stock. Subject to certain exceptions, the rights become exercisable and trade separately from the common stock only upon the “distribution date,” which occurs upon the earlier of:
• ten days following a public announcement (such date, the “stock acquisition date”) that a person or group of affiliated or associated persons at any time after the close of business on February 12, 2013 has become an acquiring person (unless, prior to the expiration of Broadwind’s right to redeem the rights, such person or group is determined by the Board to be an exempted person, in which case the stock acquisition date will be deemed not to have occurred); or
• ten business days (or later date if determined by the Board prior to such time as any person or group becomes an acquiring person) following the commencement of a tender offer or exchange offer which, if consummated, would result in a person or group becoming an acquiring person.
In addition, if the Board determines in good faith that a person became an acquiring person inadvertently and such person divests as promptly as practicable a sufficient number of shares of common stock so that such person would no longer be an acquiring person, then such person will not be deemed to be an acquiring person.
Until the distribution date, the surrender for transfer of any shares of common stock outstanding will also constitute the transfer of the rights associated with those shares.
As soon as practicable after the distribution date, separate certificates or book-entry statements will be mailed to holders of record of our common stock as of the close of business on the distribution date. From and after the distribution date, the separate rights certificates or book-entry records alone will represent the rights. Except as otherwise provided in the Section 382 Rights Agreement, only shares of common stock issued prior to the distribution date will be issued with rights.
The rights are not exercisable until the distribution date and, unless earlier redeemed or exchanged by us as described below, will expire upon the earliest of:
• the close of business on February 22, 2019;
• the time at which the rights are redeemed;
• the time at which the rights are exchanged;
• the close of business on the effective date of the repeal of Section 382 of the Code or any successor statute if the Board determines that the Rights Plan is no longer necessary or desirable for the preservation of certain tax benefits; and
• the close of business on the first day of a taxable year of Broadwind to which the Board determines that certain tax benefits may not be carried forward.
In the event that a person or group becomes an acquiring person (a “flip-in event”), each holder of a right (other than any acquiring person and certain related parties, whose rights automatically become null and void) will have the right to receive, upon exercise, common stock having a value equal to two times the exercise price of the right. If an insufficient number of shares of common stock is available for issuance, then the Board would be required to substitute cash, property or other securities of Broadwind for the common stock. The rights may not be exercised following a flip-in event while Broadwind has the ability to cause the rights to be redeemed, as described later in this summary.
For example, at an exercise price of $14.00 per right, each right not owned by an acquiring person (or by certain related parties) following a flip-in event would entitle its holder to purchase $28.00 worth of common stock (or other consideration, as noted above) for $14.00. Assuming that the common stock had a per share value of $3.50 at that time, the holder of each valid right would be entitled to purchase eight shares of common stock for $14.00.
The exercise price payable, and the number of shares of preferred stock or other securities or property issuable, upon exercise of the rights are subject to adjustment from time to time to prevent dilution:
• in the event of a stock dividend on, or a subdivision, combination or reclassification of, the preferred stock;
• if holders of the preferred stock are granted certain rights, options or warrants to subscribe for preferred stock or convertible securities at less than the current market price of the preferred stock; or
• upon the distribution to holders of the preferred stock of evidences of indebtedness or assets (excluding regular quarterly cash dividends) or of subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the exercise price will be required until cumulative adjustments amount to at least 1% of the exercise price. No fractional shares of preferred stock will be issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the preferred stock on the last trading day prior to the date of exercise.
In general, Broadwind may redeem the rights in whole, but not in part, at a price of $0.001 per right (subject to adjustment and payable in cash, common stock or other consideration deemed appropriate by the Board) at any time until ten days following the stock acquisition date. Immediately upon the action of the Board authorizing any redemption, the rights will terminate and the only right of the holders of rights will be to receive the redemption price.
At any time after there is an acquiring person and prior to the acquisition by the acquiring person of 50% or more of the outstanding shares of our common stock, we may exchange the rights (other than rights owned by the acquiring person which will have become void), in whole or in part, at an exchange ratio of one share of common stock, or one one-thousandth of a share of preferred stock (or of a share of a class or series of our preferred stock having equivalent rights, preferences and privileges), per right (subject to adjustment).
Until a right is exercised, its holder will have no rights as a stockholder of Broadwind, including the right to vote or to receive dividends. While the distribution of the rights will not result in the recognition of taxable income by us or our stockholders, stockholders may, depending upon the circumstances, recognize taxable income after a triggering event.
Broadwind and the rights agent may from time to time amend or supplement the Section 382 Rights Agreement without the consent of the holders of the rights. After the stock acquisition date, however, no amendment can materially adversely affect the interests of the holders of the rights (other than the acquiring person or any affiliate or associate thereof).
Provisions of the Company’s Certificate of Incorporation, Bylaws and Delaware Law that May Have an Anti-Takeover Effect
Certificate of Incorporation and Bylaws. The Company’s certificate of incorporation and bylaws provide that a special meeting of stockholders may be called only by the Chief Executive Officer, the Chairman of the Board, Chief Executive Officer,president, or the Secretaryany two members of the Company.Board. Stockholders are not permitted to call, or to require that the Board of Directors call, a special meeting of stockholders. In addition, our authorized but unissued and unreserved common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Delaware Takeover StatuteStatute. . The Company’s certificate of incorporation provides that the Company will not be subject to Section 203 of the Delaware General Corporation Law (the “DGCL”), which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any “business combination”business combination (as defined below) with any “interested stockholder”interested stockholder (as defined below) for a period of three years following the date that such stockholder became an interested stockholder, unless: (i) prior to such date, the Board of Directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; (ii) on consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned (x) by persons who are directors and also officers and (y) by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or (iii) on or subsequent to such date, the business combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.
Section 203 of the DGCL defines “business combination” to include: (i) any merger or consolidation involving the corporation and the interested stockholder; (ii) any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; (iii) subject to certain exceptions, any transaction that results in the issuance or transfer by the
corporation of any stock of the corporation to the interested stockholder; (iv) any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or (v) the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. In general, Section 203 of the DGCL defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by such entity or person.
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TableRequirements for Advance Notification of ContentsStockholder Nominations and Proposals.
DESCRIPTION OF DEBT SECURITIES
This section describesOur bylaws establish advance notice procedures with respect to stockholder proposals and the general terms and provisionsnomination of candidates for election as directors, other than nominations made by or at the direction of the debt securities thatBoard or a committee of the Board.
Options
At August 10, 2017, there were 593,583 unissued shares of common stock subject to outstanding options and restricted stock units.
Transfer Agent
The transfer agent and registrar for our common stock is Wells Fargo Bank, National Association. The transfer agent and registrar’s address is 1110 Centre Pointe Curve, Suite 101, Mendota Heights, MN 55120 and its telephone number is 1-800-401-1957.
Dividend Policy
We have never paid cash dividends on our common stock and have no current plan to do so in the foreseeable future. The declaration and payment of dividends on our common stock are subject to the discretion of the Board and are further limited by our credit agreements and other contractual agreements we may issuehave in place from time to time in the form of one or more series of debt securities. We may offer secured or unsecured debt securities which may be senior or subordinated and which may be convertible.time. The applicable prospectus supplement and/or other offering materials will describe the specific termsdecision of the debt securities offered through that prospectus supplement as well as anyBoard to pay future dividends will depend on general terms described in this section that will not apply to those debt securities. Tobusiness conditions, the extent the applicable prospectus supplement oreffect of a dividend payment on our financial condition, and other offering materials relating to an offering of debt securities are inconsistent with this prospectus, the terms of that prospectus supplement or other offering materials will supersede the information in this prospectus.
factors our Board may consider relevant. The debt securities will be issued under one or more indentures to be entered into between us and one or more trustees. References herein to the “indenture” and the “trustee” refer to the applicable indenture and the applicable trustee pursuant to which any particular series of debt securities is issued. The terms of any series of debt securities will be those specified in or pursuant to the applicable indenture and in the certificates evidencing that series of debt securities and those made partcurrent policy of the indenture by the Trust Indenture Act of 1939, as amended. We may issue senior, subordinatedBoard is to reinvest cash generated in our operations to promote future growth and convertible debt securities under the same indenture.
The following summary of selected provisions of the indenture and the debt securities is not complete, and the summary of selected terms of a particular series of debt securities included in the applicable prospectus supplement also will not be complete. You should review the applicable form of indenture and the applicable form of certificate evidencing the debt securities, which forms have been or will be filed as exhibits to the registration statement of which this prospectus is a part or as exhibits to documents which have been or will be incorporated by reference in this prospectus. To obtain a copy of the indenture or the form of certificate for the debt securities, see “Where You Can Find More Information” in this prospectus. The following summary and the summary in the applicable prospectus supplement are qualified in their entirety by reference to all of the provisions of the indenture and the certificates evidencing the debt securities (including any amendments or supplements we may enter into from time to time which are permitted under the debt securities or any indenture), which provisions, including defined terms, are incorporated by reference in this prospectus.
Unless otherwise specified in a prospectus supplement, the debt securities will be direct unsecured obligations of the Company. Any debt securities designated as senior will rank equally with any of our other senior and unsubordinated debt. Any debt securities designated as subordinated will be subordinate and junior in right of payment to any senior indebtedness. There may be subordinated debt securities that are senior or junior to other series of subordinated debt securities.
The applicable prospectus supplement will set forth the terms of the debt securities or any series thereof, including, if applicable:
·the title of the debt securities and whether the debt securities will be senior debt securities or subordinated debt securities;fund potential investments.
·any limit upon the aggregate principal amount of the debt securities;
·whether the debt securities will be issued as registered securities, bearer securities or both, and any restrictions on the exchange of one form of debt securities for another and on the offer, sale and delivery of the debt securities in either form;
·the date or dates on which the principal amount of the debt securities will mature;
·if the debt securities bear interest, the rate or rates at which the debt securities bear interest, or the method for determining the interest rate, and the date or dates from which interest will accrue;
·if the debt securities bear interest, the dates on which interest will be payable, or the method for determining such dates, and the regular record dates for interest payments;
·the place or places where the payment of principal, any premium and interest will be made, where the debt securities may be surrendered for transfer or exchange and where notices or demands to or upon us may be served;
·any optional redemption provisions, which would allow us to redeem the debt securities in whole or in part;
·any sinking fund or other provisions that would obligate us to redeem, repay or purchase the debt securities;
·if the currency in which the debt securities will be issuable is United States dollars, the denominations in which any registered securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any bearer securities will be issuable, if other than the denomination of $5,000;
·if other than the entire principal amount, the portion of the principal amount of debt securities which will be payable upon a declaration of acceleration of the maturity of the debt securities;
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·the events of default and covenants relevant to the debt securities, including, the inapplicability of any event of default or covenant set forth in the indenture relating to the debt securities, or the applicability of any other events of defaults or covenants in addition to the events of default or covenants set forth in the indenture relating to the debt securities;
·the name and location of the corporate trust office of the applicable trustee under the indenture for such series of notes;
·if other than United States dollars, the currency in which the debt securities will be paid or denominated;
·if the debt securities are to be payable, at our election or the election of a holder of the debt securities, in a currency other than that in which the debt securities are denominated or stated to be payable, the terms and conditions upon which that election may be made, and the time and manner of determining the exchange rate between the currency in which the debt securities are denominated or stated to be payable and the currency in which the debt securities are to be so payable;
·the designation of the original currency determination agent, if any;
·if the debt securities are issuable as indexed securities, the manner in which the amount of payments of principal, any premium and interest will be determined;
·if the debt securities do not bear interest, the dates on which we will furnish to the applicable trustee the names and addresses of the holders of the debt securities;
·if other than as set forth in an indenture, provisions for the satisfaction and discharge or defeasance or covenant defeasance of that indenture with respect to the debt securities issued under that indenture;
·the date as of which any bearer securities and any global security will be dated if other than the date of original issuance of the first debt security of a particular series to be issued;
·whether and under what circumstances we will pay additional amounts to non-United States holders in respect of any tax assessment or government charge;
·whether the debt securities will be issued in whole or in part in the form of a global security or securities and, in that case, any depositary and global exchange agent for the global security or securities, whether the global form shall be permanent or temporary and, if applicable, the exchange date;
·if debt securities are to be issuable initially in the form of a temporary global security, the circumstances under which the temporary global security can be exchanged for definitive debt securities and whether the definitive debt securities will be registered securities, bearer securities or will be in global form and provisions relating to the payment of interest in respect of any portion of a global security payable in respect of an interest payment date prior to the exchange date;
·the extent and manner to which payment on or in respect of debt securities will be subordinated to the prior payment of our other liabilities and obligations;
·whether payment of any amount due under the debt securities will be guaranteed by one or more guarantors, including one or more of our subsidiaries;
·whether the debt securities will be convertible and the terms of any conversion provisions;
·the forms of the debt securities; and
·any other terms of the debt securities, which terms shall not be inconsistent with the requirements of the Trust Indenture Act of 1939, as amended.
This prospectus is part of a registration statement that provides that we may issue debt securities from time to time in one or more series under one or more indentures, in each case with the same or various maturities, at par or at a discount. Unless indicated in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute a single series of debt securities under the applicable indenture.
We intend to disclose any restrictive covenants for any issuance or series of debt securities in the applicable prospectus supplement.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, shares of common stock or shares of preferred stock. We may issue warrants independently or together with other securities. Warrants sold with other securities may be attached to or separate from the other
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securities. We will issue warrants under one or more warrant agreements between us and a warrant agent that we will name in the prospectus supplement.
The prospectus supplement relating to any warrants we are offering will include specific terms relating to the offering. These terms will include some or all of the following:
·• the title of the warrants;
·• the aggregate number of warrants offered;
·• the designation, number and terms of the debt securities, shares of common stock or shares of preferred stock purchasable upon exercise of the warrants and procedures by which those numbers may be adjusted;
·• the exercise price of the warrants;
·• the dates or periods during which the warrants are exercisable;
·• the designation and terms of any securities with which the warrants are issued;
·• if the warrants are issued as a unit with another security, the date on and after which the warrants and the other security will be separately transferable;
·• if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated;
·• any minimum or maximum amount of warrants that may be exercised at any one time;
·
• any terms relating to the modification of the warrants; and
·• any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating holders to purchase from us, and us to sell to the holders, a specified number of shares of common stock at a future date or dates, which we refer to in this prospectus as “Stock Purchase Contracts.” The price per share of common stock and number of shares of common stock may be fixed at the time the Stock Purchase Contracts are issued or may be determined by reference to a specific formula set forth in the Stock Purchase Contracts. The Stock Purchase Contracts may be issued separately or as a part of units consisting of a Stock Purchase Contract and our debt securities or debt obligations of third parties, securing the holders’ obligations to purchase the shares of common stock under the Stock Purchase Contracts, which we refer to in this prospectus as “Stock Purchase Units.” The Stock Purchase Contracts may require holders to secure their obligations thereunder in a specified manner. The Stock Purchase Contracts also may require us to make periodic payments to the holders of the Stock Purchase Units or vice-versa and such payments may be unsecured or prefunded on some basis.
The applicable prospectus supplement will describe the terms of any Stock Purchase Contracts or Stock Purchase Units. The description in the prospectus supplement will not necessarily be complete, and reference will be made to the Stock Purchase Contracts, and, if applicable, collateral or depositary arrangements, relating to the Stock Purchase Contracts or Stock Purchase Units. Material United States federal income tax considerations applicable to the Stock Purchase Units and the Stock Purchase Contracts will also be discussed in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell any of the securities covered bybeing offered pursuant to this prospectus in any manner specified in a prospectus supplement or in any of the following ways (or in any combination):manners:
• directly to purchasers;
• to or through underwriters;
• through dealers or agents; or
• through a combination of methods.
·We may distribute the securities from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to the prevailing market prices or at negotiated prices. We may also determine the price or other terms of the securities offered under this prospectus by use of an electronic auction.
throughThe prospectus supplement with respect to securities being offered will set forth the terms of the offering, including the names of the underwriters, dealers or remarketing firms;agents, if any, the purchase price of the securities, the net proceeds to us, any underwriting discounts and other items constituting underwriters’ compensation, any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which the securities may be listed. Also, if applicable, we will describe in the prospectus supplement how any auction will determine the price or any other terms, how potential investors may participate in the auction and the nature of the underwriters’ obligations with respect to the auction.
If an underwriter is used in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying prices to be determined by the dealer.
Offers to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
· directlyIf a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to one or more purchasers, includingthe dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a limited number of institutional purchasers; orprospectus supplement.
· through agents.
Any such dealercompensation paid to underwriters, dealers or agent,agents in additionconnection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to any underwriter,participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be an underwriterunderwriters within the meaning of the Securities Act. AnyAct of 1933, as amended (the “Securities Act”), and any discounts orand commissions received by an underwriter, dealer, remarketing firm or agentthem and any profit realized by them on the sale or resale of the securities may be considered by the SECdeemed to be underwriting discounts and commissionscommissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act.
Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons for certain expenses.
7
TableAny common stock will be listed on the NASDAQ Global Select Market, but any other securities may or may not be listed on a national securities exchange. To facilitate the offering of Contentssecurities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with such a transaction,those derivatives, the third parties may pursuant to this prospectus and the applicable prospectus supplement, sell securities covered by this prospectus and the applicable prospectus supplement.supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle suchthose sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related short positions. We may also loan or pledge securiteis covered byopen borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, and the applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities covered by this prospectus and the applicable prospectus supplement.
The terms of the offering of securities with respect to which this prospectus is being delivered will be set forthnamed in the applicable prospectus supplement and will include, among other things:
· the terms of the offering;
· the price of the securities;
· the proceeds(or a post-effective amendment). In addition, we may otherwise loan or pledge securities to us from the sale;
· the names of any underwriters, dealers, remarketing firms or agents and the amount of securities underwritten or purchased by each of them;
· any over-allotment options under which underwriters may purchase additional securities from us;
· any underwriting discounts, agency feesa financial institution or other compensation to underwriters or agents;third party that in turn may sell the securities short using this prospectus and
· any discounts or concessions which may be allowed or reallowed or paid to dealers.
Underwriters and Agents
If underwriters are used in the sale of securities, such securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters acting alone. Unless otherwise set forth in the an applicable prospectus supplement, the obligations of the underwriterssupplement. Such financial institution or other third party may transfer its economic short position to purchase theinvestors in our securities described in the applicable prospectus supplement will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all such securities if any are purchased by them. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If the dealers acting as principals are used in the sale of any securities, such securities will be acquired by the dealers, as principals, and may be resold from time to time in one or more transactions at varying prices to be determined by the dealer at the time of resale. The name of any dealer and the terms of the transactions will be set forth in the applicable prospectus supplement with respect to the securities being offered.
Securities may also be offered and sold, if so indicated in the applicable prospectus supplement in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more firms, which we refer to herein as the “remarketing firms,” acting as principals for their own accounts or as our agents, as applicable. Any remarketing firm will be identified and theconcurrent offering of other securities.
The specific terms of its agreement, if any with us and its compensationlock-up provisions in respect of any given offering will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as that term is defined in the Securities Act in connection
In compliance with the securities remarketed thereby.
The securities may be sold directly by us or through agents designated by us from time to time. In the case of securities sold directly by us, no underwriters or agents would be involved. Any agents involved in the offer or sale of the securities in respect of which this prospectus is being delivered, and any commissions payable by us to such agents, will be set forth in the applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.
We may authorize agents, underwriters or dealers to solicit offers by certain specified institutions to purchase the securities to which this prospectus and the applicable prospectus supplement relates from us at the public offering price set forth in the applicable prospectus supplement, plus, if applicable, accrued interest, pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be subject only to those conditions set forth in the applicable prospectus supplement, and the applicable prospectus supplement will set forth the commission payable for solicitation of such contracts.
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Agents, dealers, underwriters and remarketing firms may be entitled, under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution to payments they may be required to make in respect thereof. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with, or perform services for us or our subsidiaries in the ordinary course of business.
Any underwriter may engage in over-allotment, stabilizing, transactions, short, covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying securities so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. These transactions may be effected on the NASDAQ Global Select Market or otherwise.
Membersguidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, may participate in distributions of the offered securities. In compliance with the guidelines of FINRA, as of the date of this prospectus, the maximum discountconsideration or commissiondiscount to be received by any FINRA member or independent broker-dealerbroker dealer may not exceed 8.0%8% of the offering proceeds.aggregate proceeds of the offering.
The underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL MATTERS
The validityThompson Coburn LLP will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby willon behalf of Broadwind Energy, Inc. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by our counsel Sidley Austin LLP, Chicago, Illinois.that we will name in the applicable prospectus supplement.
EXPERTS
EXPERTS
The consolidated financial statements of Broadwind Energy, Inc. as of December 31, 2015, and subsidiaries and management’s assessment offor the effectiveness of internal control over financial reportingyear ended December 31, 2015, incorporated herein by reference, have been so incorporated in this prospectusreliance upon the report of KPMG LLP, our former independent registered public accounting firm, appearing elsewhere and incorporated by reference herein, and upon the authority of said firm as experts in auditing and accounting. Broadwind has agreed to ourindemnify and hold KPMG LLP (“KPMG”) harmless against and from any and all legal costs and expenses incurred by KPMG in successful defense of any legal action or proceeding that arises as a
result of KPMG’s consent to the incorporation by reference of its audit report on Broadwind’s past financial statement incorporated by reference in this registration statement.
The financial statements of Red Wolf Company, LLC as of December 31, 2015 and December 31, 2016, and for the years ended December 31, 2015 and December 31, 2016, incorporated herein by reference, have been so incorporated in reliance upon the report of Moore Beauston Woodham LLP, Red Wolf’s independent registered public accounting firm, and upon the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of Broadwind Energy, Inc. as of December 31, 2016 and for the year then ended December 31, 2016 incorporated herein by reference, from the Broadwind Energy, Inc. Annual Report on Form 10-K for the year ended December 31, 2010 in reliance upon the report of Grant Thornton2016 have been audited by RSM US LLP, an independent registered public accounting firm, given onas stated in their report incorporated herein by reference, in reliance upon such report and upon the authority of saidsuch firm as experts in auditingaccounting and accounting.
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Table of Contentsauditing.
$ 75,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
PROSPECTUS (subject to completion)
, 2011
Part II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
Set forth belowThe following is a tablean estimate of the registration fee for the SEC and estimatesexpenses (all of all other expenseswhich are to be incurredpaid by the registrant) that we may incur in connection with the issuancesecurities being registered hereby.
Securities and distribution of the securities described in the registration statement, other than underwriting discountsExchange Commission Registration Fee $5,795
Printing Expenses*
Legal Fees and commissions:Expenses*
Accounting Fees and Expenses*
Transfer Agent and Registrar Fees*
NASDAQ Fees*
Total*
Securities and Exchange Commission Registration Fee | | $ | 8,708 | |
Printing Expenses | | $ | * | |
Legal Fees and Expenses | | $ | * | |
Accounting Fees and Expenses | | $ | * | |
Total | | $ | * | |
(*) These fees and expenses will vary depending on the number of offerings and the terms of such offerings, and accordingly, cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers.
Delaware Law
Section 145 of the Delaware General Corporation Law (the “DGCL”)DGCL authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit indemnification for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.
Sections 145(a) and (b) of the DGCL provide that a corporation may indemnify its directors and officers, as well as other employees and individuals, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation (a derivative action)), if they acted in good faith and in a manner they 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 their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification in which the person seeking indemnification has been found liable to the corporation.
Section 145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized by Section 145 of the DGCL. Section 145(e) of the DGCL further provides that such expenses (including attorneys’ fees) incurred by former directors and officers or other employees or agents of the corporation may be so paid upon such terms and conditions as the corporation deems appropriate.
Section 145(g) of the DGCL permits a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145 of the DGCL.
Charter and Bylaw Provisions and Other Arrangements
OurThe Company’s certificate of incorporation and bylaws provide that wethe Company must indemnify ourits directors and officers to the fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately by a court of competent jurisdiction that such person is not entitled to be indemnified by us.the Company. Under Article XIIX of ourthe certificate of incorporation, wethe Company may maintain insurance on behalf of any person who is or was a director or officer of us,the Company, or is or was serving at the request of usthe Company as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such
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status, whether or not we havethe Company has the power into indemnify such person. Pursuant to Section 145 of the DGCL and ourthe certificate of incorporation, we maintainthe Company maintains directors’ and officers’ liability insurance coverage.
In addition, as permitted by the DGCL, ourthe Company’s certificate of incorporation provides that no director will be liable to usthe Company or to ourits stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. The effect of this provision is to restrict ourthe Company’s rights and the rights of ourits stockholders in derivative suits to recover monetary damages against a director for breach of fiduciary duty as a director, except that a director will be personally liable for:
·• any breach of his or her duty of loyalty to usthe Company or ourits stockholders;
·• acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
·• the payment of dividends or the redemption or purchase of stock in violation of Delaware law; or
·• any transaction from which the director derived an improper personal benefit.
This provision does not affect a director’s liability under the federal securities laws.
In addition to the provisions of ourthe certificate of incorporation and bylaws described above, we havethe Company has entered into indemnification agreements with ourits directors and certain officers to indemnify such directors and officers to the fullest extent permitted by ourthe certificate of incorporation and bylaws.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of ourthe certificate of incorporation, our bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Item 16. Exhibits and Financial Statement Schedules16. Exhibits.
ReferenceA list of exhibits filed with this registration statement on Form S-3 is made toset forth on the attached Exhibit Index whichand is incorporated herein by reference herein.reference.
Item 17. Undertakings17
(a)The undersigned registrant hereby undertakes:. Undertakings.
| (a) | | The undersigned registrant hereby undertakes: |
(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
| (i) | | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement,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.statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to sectionSection 13 or sectionSection 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser,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 sectionSection 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,, however,, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | | (i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
(ii)Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)Insofar as indemnification for liabilities arising under the Securities Act of 1933, or 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.
| (b) | | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in said Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
| (d) | | The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. |
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(d)The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under section 305(b)(2) of the Trust Indenture Act.
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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 Naperville,Cicero, State of Illinois on the 11th day of August, 5, 2011.2017.
| | BROADWIND ENERGY, INC. |
| | | | |
| | | | |
| | By:
| /s/ PETER C. DUPREY
|
| | | Name:
| Peter C. Duprey
|
| | | Title:
| Chief Executive Officer
|
(Registrant)
POWER OF ATTORNEYBy: /s/ Stephanie K. Kushner
Stephanie K. Kushner
President and Chief Executive Officer
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints J.D. Rubin, Peter C. Duprey and Stephanie K. Kushner and Jason L. Bonfigt, and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution, and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities,capabilities, to sign any orand all amendments (including post-effective amendments) to this registration statement, (andincluding post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) underincreasing the Securities Act, as amended,number of securities for the offering which this Registration Statement relates),registration is sought, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, andwith full power of each of them,to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises,connection therewith, as fully tofor all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them,his, her or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This power of attorney shall be governed by and construed in accordance with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act, of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signatures
|
| Capacity
|
| Date
|
| | |
Signature | Title | Date |
| | |
/s/ PETER C. DUPREYStephanie K. Kushner | | President, Chief Executive Officer, | August 11, 2017 |
Stephanie K. Kushner | and Director | | August 5, 2011
|
Peter C. Duprey
| | (Principal Executive Officer) | |
| | |
/s/ Jason L. Bonfigt | Vice President and Chief Financial | August 11, 2017 |
Jason L. Bonfigt | Officer | |
| (Principal Financial Officer and | |
| Principal Accounting Officer) | |
| | |
/s/ David P. Reiland | Director and Chairman of the Board | August 11, 2017 |
David P. Reiland | | |
| | | | |
/s/ STEPHANIE K. KUSHNERTerence P. Fox | | Chief Financial Officer (Principal Financial
| Director | August 5, 201111, 2017 |
Stephanie K. Kushner
| | Officer and Principal Accounting Officer)Terence P. Fox
| | |
| | | | |
/s/ DAVID REILANDPersio V. Lisboa | | Chairman of the Board
| Director | August 5, 201111, 2017 |
David Reiland
| | Persio V. Lisboa | | |
| | | | |
/s/ CHARLES H. BEYNON | Thomas A. Wagner | Director | | August 5, 201111, 2017 |
Charles H. Beynon
| | Thomas A. Wagner | | |
| | |
/s/ Cary B. Wood | Director | August 11, 2017 |
Cary B. Wood | | |
Exhibit Index
The following exhibits are filed or incorporated by reference as part of this registration statement:
| |
/s/ WILLIAM T. FEJES, JR.Exhibit
Number | | Director
| | August 5, 2011
|
William T. Fejes, Jr.
| | | | |
| | | | |
/s/ TERENCE P. FOX
| | Director
| | August 5, 2011
|
Terence P. Fox
| | | | |
| | | | |
/s/ THOMAS A. WAGNER
| | Director
| | August 5, 2011
|
Thomas A. Wagner
| | | | |
II-5
Table of Contents
I. EXHIBIT INDEX
EXHIBIT
NUMBER
| | DESCRIPTIONDescription
|
1.1 | * | | Form of Underwriting Agreement |
| | | |
4.1 | | | Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q10 Q for the quarterly period ended June 30, 2008) |
| | | |
4.2 | | | Amended and Restated BylawsCertificate of Amendment to the Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K8 K filed on November 5, 2010)
|
| | | August 23, 2012) |
4.3 | *Second Amended and Restated Bylaws of the Company, adopted as of May 20, 2014 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8 K filed May 23, 2014)
|
4.4 | Section 382 Rights Agreement dated as of February 12, 2013 between the Company and Wells Fargo Bank, National Association, as rights agent, which includes the Form of Rights Certificate as Exhibit B thereto (incorporated by reference to Exhibit 1 to the Company’s Registration Statement on Form 8‑A filed February 13, 2013) |
4.5 | First Amendment to Section 382 Rights Agreement dated as of February 2, 2016 between the Company and Wells Fargo Bank, National Association, as rights agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed February 8, 2016) |
4.6 | Certificate of Designation of Series A Junior Participating Preferred Stock of the Company (incorporated by reference to Exhibit 2 to the Company’s Registration Statement on Form 8 A filed February 13, 2013) |
4.7* | Form of Certificate of Designation, including specimen certificate (relating to the preferred stock registered hereby) |
| | | |
4.4
| | | Form of Indenture
|
| | | |
4.5
| *
| 4.8* | Form of Warrant Agreement (including form of warrant certificate) |
| | | |
4.6
| *
| 4.9* | Form of Stock Purchase Contract (including form of stock purchase contracts and/or stock purchase units, if any) |
| | | |
5.1 | | | Opinion of Sidley AustinThompson Coburn LLP |
| | | |
12.1
| | | Statement of computation of ratio of earning to fixed charges
|
| | | |
23.1 | | | Consent of Grant ThorntonRSM US LLP |
| | | |
23.2 | Consent of KPMG LLP |
23.3 | Consent of Sidley AustinMoore Beauston Woodham LLP |
23.4 | Consent of Thompson Coburn LLP (included in Exhibit 5.1) |
| | | . |
24.1 | | | Power of Attorney (included in(incorporated by reference to the signature page) |
| | | |
25.1
| *
| | Statement of Eligibility of Trustee on Form T-1
page hereto) |
* To the extent applicable, to be filed by an amendment or as an exhibit to a document filed under the Exchange Act and incorporated by reference herein.