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As filed with the Securities and ExchangeExchange Commission on July 7, 2014August 8, 2018

Registration No. 333-

 



 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

FORM S-3

REGISTRATION STATEMENT

UNDER UNDER

THE SECURITIES ACT OF 1933

 


 

GEVO, INC.

(Exact name of registrant as specified in its charter)

 


 

Delaware

Delaware

87-0747704

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification Number)

345 Inverness Drive South, Building C, Suite 310

Englewood, CO 80112

(303) 858-8358

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

 


 

Patrick R. Gruber

Chief Executive Officer

345 Inverness Drive South, Building C, Suite 310

Englewood, CO 80112

(303) 858-8358

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

 


 

With a copy to:

Jason Day

Ned A. Prusse

Copies to:Perkins Coie LLP
1900 Sixteenth Street, Suite 1400

Deyan Spiridonov, Esq.

Teri O’Brien, Esq.

Paul Hastings LLP

4747 Executive Drive, 12th Floor

San Diego, CA 92121

(858) 458-3000Denver, Colorado 80202
(303) 291-2300

 


 

Approximate date of commencement of proposed sale to the public:From time to time after the effective date of this Registration Statement.

(Approximate date of commencement of proposed sale to the public)

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

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

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

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

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


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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”filer,” “smaller reporting company,” and “smaller reporting“emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer

Accelerated filer

 ¨ Accelerated filer¨

Non-accelerated filer

x

  (Do not check if a smaller reporting company)

Smaller reporting company

 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 complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐

 


CALCULATION OF REGISTRATION FEE

 

Title of Each Class of

Securities To Be Registered

 

Amount

to be

Registered (1)

 

Proposed

Maximum

Offering Price

Per Share(3)

 

Proposed

Maximum
Aggregate

Offering Price(3)

 Amount of
Registration Fee

Common Stock, par value $0.01 per share

 17,534,279(2) $0.87 $15,254,823 $1,965

 

 

Title of Each Class of

Securities to Be Registered (1)

Amount

to Be

Registered (2)

Proposed

Maximum

Offering Price

Per Unit (2)

Proposed

Maximum
Aggregate

Offering Price (2)(3)

Amount of
Registration Fee
(3)

Common Stock, par value $0.01 per share

Preferred Stock, par value $0.01 per share

Debt Securities

Depositary Shares

Warrants

Purchase Contracts

Units

Total

  

$300,000,000

$37,350

(1)

All 17,534,279 shares of common stock registered pursuant to this registration statement are to be offered by the selling stockholder named herein or its transferees, donees, pledgees or other successors–in–interest.

Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the sharesan indeterminate number of additional securities are registered hereunder that may be issued to prevent dilution in connection with a stock split, stock dividend, recapitalization, or similar event or adjustment.

(2)

There are being registered hereunder includeunder this registration statement such indeterminate number of shares of the common stock, preferred stock, debt securities, depositary shares, warrants, purchase contracts and/or units of Gevo, Inc. (the “Company”)the registrant as shall have an aggregate initial offering price not to exceed $300,000,000. Any securities registered under this registration statement may be issuablesold separately or as units with respect to the shares beingother securities registered hereunder to prevent dilution by reason of any stock dividend, stock split, recapitalizationunder this registration statement. The proposed maximum initial offering prices per unit or other similar transaction.

(2)Represents shares issuable upon conversion of the Company’s 10.0% Convertible Senior Secured Notes due 2017 (the “Convertible Notes”), which were acquired by the selling stockholder in a private placement, and shares that maysecurity will be issuabledetermined, from time to time, by the registrant in connection with the event thatissuance by the Company pays a portionregistrant of the interest on the Convertible Notes in kind (by either increasing the principalsecurities registered under this registration statement. The securities registered also include such indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder or that are represented by depositary shares. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities. The amount of each class of securities being registered under this registration statement is not specified pursuant to General Instruction II.D. of Form S-3 under the Convertible Notes or issuing additional Convertible Notes) or elects to pay make-whole payments due upon conversion of the Convertible Notes, if any, in shares of the Company’s common stock.Securities Act.

(3)

Estimated solely for the purpose of calculating the registration fee

Calculated pursuant to Rule 457(c)457(o) under the Securities Act. The offering price per share and aggregate offering price are based upon the average of the high and low prices per share of the Company’s common stock, as reported on the NASDAQ Global Market, on July 3, 2014, a date within five business days prior to the filing of this registration statement.

 


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 or until the registration statement shall become effective on such date as the Commission acting pursuant to said Section 8(a), may determine.determine.

 




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The information in this prospectus is not complete and may be changed. WeNeither we nor the selling stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.permitted.

SUBJECT TO COMPLETION, DATED JULY 7, 2014AUGUST 8, 2018

PROSPECTUS

 

LOGO

Gevo, Inc.$300,000,000

17,534,279 Shares of Common Stock

Preferred Stock

Debt Securities

Depositary Shares

Warrants

Purchase Contracts

Units

 


This prospectus relates to the offer and sale from time to time by the Selling Stockholder (as defined herein) of up to 17,534,279 shares of our common stock, par value $0.01 per share (the “Common Stock”). The shares of Common Stock covered by this prospectus include shares of Common Stock issuable upon exercise of our 10.0% Convertible Senior Secured Notes due 2017 (the “Convertible Notes”), which were issued in connection with a private placement financing, and shares of Common Stock that

We may, be issuable from time to time in the event that we pay a portion of the interest on the Convertible Notes in kind (by either increasing the principal amount of the Convertible Notesone or issuing additional Convertible Notes) or elect to pay make-whole payments due upon conversion of the Convertible Notes, if any, in shares of Common Stock. We are registering the resale of the shares of Common Stock underlying the Convertible Notes as required by the Registration Rights Agreement that we entered into with the Selling Stockholder on May 9, 2014 (the “Registration Rights Agreement”).

Our registration of the shares of Common Stock covered by this prospectus does not mean that the Selling Stockholder will offer or sell any of the shares. The Selling Stockholder maymore offerings, offer and sell or otherwise disposeup to $300,000,000 in the aggregate of common stock, preferred stock, debt securities, depositary shares, warrants, purchase contracts and units, in any combination. The specific terms of the shares of Common Stock describedsecurities, including their offering prices, will be contained in one or more supplements to this prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. See “Plan of Distribution” beginning on page 17 for more information.

We will not receive any of the proceeds from the shares of Common Stock sold by the Selling Stockholder.

The Selling Stockholder will pay all underwriting discounts and selling commissions, if any, in connection with the sale of the shares of Common Stock. We have agreed to pay certain expenses in connection with this registration statement and to indemnify the Selling Stockholder against certain liabilities. As of the date of this prospectus, no underwriter or other person has been engaged to facilitate the sale of shares of Common Stock in this offering.

prospectus. You should read this prospectus and any prospectus supplement carefully before you invest. The securities may be sold to or through one or more underwriters, dealers or agents, or directly to investors, on a continuous or delayed basis. See “Plan of Distribution.”

Our Common Stockcommon stock is tradedlisted on the NASDAQ GlobalNasdaq Capital Market under the symbol “GEVO.”“GEVO”. On July 3, 2014,August 7, 2018, the last reported sale price of our Common Stockcommon stock on the NASDAQ GlobalNasdaq Capital Market was $0.87. There is currently no trading market for the Convertible Notes.$3.93 per share.

 


 

Investing in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the headingrisks. See “Risk Factors” beginning on page 104 of this prospectus, and in the documents which are incorporated by reference herein, and contained under similar headings in the other documents that we incorporate by reference into this prospectus.applicable prospectus supplement and any related free writing prospectus.


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.offense.

 


 

The date of this prospectusprospectus is               , 2014.

2018.


Table of Contents

TABLE OF CONTENTS

 

Page

Page

ABOUT THIS PROSPECTUS

1

CONVENTIONS THAT APPLY TO THIS PROSPECTUSCAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

  2 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTSRISK FACTORS

  3 

OUR COMPANY

3

PROSPECTUS SUMMARYRATIO OF EARNINGS TO FIXED CHARGES

54

RISK FACTORS10

USE OF PROCEEDS

145

DESCRIPTION OF CAPITAL STOCK

6

THE SELLING STOCKHOLDERDESCRIPTION OF DEBT SECURITIES

9

DESCRIPTION OF DEPOSITARY SHARES

  15 

DESCRIPTION OF WARRANTS

17

PLANDESCRIPTION OF DISTRIBUTIONPURCHASE CONTRACTS

  1718 

DESCRIPTION OF COMMON STOCKUNITS

19

PLAN OF DISTRIBUTION

20

LEGAL MATTERS

2321

EXPERTS

21

EXPERTS23

WHERE YOU CAN FIND ADDITIONALMORE INFORMATION

2321

INCORPORATION OF CERTAIN INFORMATION INCORPORATED BY REFERENCE

2321 

 

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ABOUT THIS PROSPECTUS

This prospectus is part of a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), that we filed with the Securities and Exchange Commission (“SEC”) using the “shelf” registration process. Under this shelf registration process, we may offer and sell any combination of the securities described in this prospectus in one or more offerings, up to a total dollar amount of $300,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer the securities described in this prospectus, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered. The prospectus supplement may also add, update or change information contained in this prospectus. This prospectus does not contain all the information provided in the registration statement filed with the SEC. You should rely only oncarefully read both this prospectus and any prospectus supplement together with the additional information described below under “Where You Can Find More Information” and “Information Incorporated By Reference” before you make an investment decision

We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus. Neither we nor the Selling Stockholder have authorized anyone to provide you with information that is different from such information. If anyone provides you with different or inconsistent information, you should not rely on it. The Selling Stockholder is offering to sell Common Stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date on its cover page regardless of the time of delivery of this prospectus or any sale of the Common Stock. In case there are differences or inconsistencies between this prospectus and the information incorporated by reference, you should rely on the information in the document with the latest date.

The Selling Stockholder is offering the Common Stock only in jurisdictions where such issuances are permitted. The distribution of this prospectus and the issuance of the Common Stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the issuance of the Common Stock and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, the Common Stock offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offerprospectus supplement or solicitation.

It is important for you to read and consider allfree writing prospectus prepared by or on behalf of the information contained in this prospectus in making your investment decision. To understand the offering fully and for a more complete description of the offering you should read this entire document carefully, including particularly the “Risk Factors” section beginning on page 10. You also should read and consider the information in the documentsus or to which we have referred you inyou. We take no responsibility for, and can provide no assurance as to the sections entitled “Where You Can Find Additional Information” and “Incorporationreliability of, Certain Information by Reference”.any other information that others may give you.

As used

Any statement made in this prospectus unless the context requires otherwise, the terms “we”, “us”, “our”, “Gevo®or “the Company” referin a document incorporated or deemed to Gevo, Inc., a Delaware corporation, and its wholly ownedbe incorporated by reference in this prospectus will be deemed to be modified or indirect subsidiaries, and their predecessors. Referencessuperseded for purposes of this prospectus to the “Selling Stockholder” referextent that a statement contained in a prospectus supplement or in any other subsequently filed document that is also incorporated or deemed to the stockholder listed herein under “The Selling Stockholder” and its transferees, donees, pledgeesbe incorporated by reference in this prospectus modifies or other successors–in–interest.

supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. See “Information Incorporated By Reference.”

 

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CONVENTIONS THAT APPLY TO THIS PROSPECTUS

This prospectus contains estimates and any accompanying prospectus supplements may include trademarks, service marks and trade names owned by us or other information concerning our target markets that are based on industry publications, surveyscompanies. All trademarks, service marks and forecasts, including those generated by the US Energy Information Association (the “EIA”), the International Energy Agency (the “IEA”), the Renewable Fuels Association (the “RFA”) and Nexant, Inc. (“Nexant”). Certain target market sizes presentedtrade names included in this prospectus have been calculated by us (as further described below) based on such information. This information involves a numberor any accompanying prospectus supplement are the property of assumptions and limitations and you are cautioned not to give undue weight to this information. Please readtheir respective owners.

Unless the section of this prospectus entitled “Cautionary Statement Regarding Forward-Looking Statements.” The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those describedcontext otherwise indicates, references in this prospectus underto “we,” “us,” “our” and the heading “Risk Factors”“Company” are to Gevo, Inc. and those incorporated herein by referenceits subsidiaries. The term “you” refers to our most recent annual report on Form 10-K and any subsequently filed quarterly reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the Securities and Exchange Commission (the “SEC”). These and other factors could cause actual results to differ materially from those expressed in these publications, surveys and forecasts.

With respect to calculation of product market volumes:a prospective investor.

 

product market volumes are provided solely to show the magnitude
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Table of the potential markets for isobutanol and the products derived from it. They are not intended to be projections of our actual isobutanol production or sales;Contents

 

product market volume calculations for fuels markets are based on data available for the year 2011 (the most current data available from the IEA);

product market volume calculations for chemicals markets are based on data available for the year 2012 (the most current data available from Nexant); and

volume data with respect to target market sizes is derived from data included in various industry publications, surveys and forecasts generated by the EIA, the IEA and Nexant.

We have converted these market sizes into volumes of isobutanol as follows:

we calculated the size of the market for isobutanol as a gasoline blendstock and oxygenate by multiplying the world gasoline market volume by an estimated 12.5% by volume isobutanol blend ratio;

we calculated the size of the specialty chemicals markets by substituting volumes of isobutanol equivalent to the volume of products currently used to serve these markets;

we calculated the size of the petrochemicals and hydrocarbon fuels markets by calculating the amount of isobutanol that, if converted into the target products at theoretical yield, would be needed to fully serve these markets (in substitution for the volume of products currently used to serve these markets); and

for consistency in measurement, where necessary we converted all market sizes into gallons.

Conversion into gallons for the fuels markets is based upon fuel densities identified by Air BP Ltd. and the American Petroleum Institute.

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This prospectus and the documents incorporated by reference herein contain forward-looking statements within the meaning of Section 27A of the Securities Act, of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, levels of activity, performance or achievements to bediffer materially different from any future results, levels of activity, performance or achievementsthose expressed or implied by the forward-looking statements. Forward-looking statements may include, but are not limited to, statements relatingrisks and uncertainties related to our ability to sell our products, our ability to expand or continue production of ethanol and isobutanol at Our specialty production facility in Luverne, Minnesota (the “Luverne Facility”), our ability to meet our production, financial and operational guidance, our ability and plans to construct a commercial hydrocarbon facility to produce alcohol-to-jet fuel, our ability to raise additional funds to continue operations and/or expand the Luverne Facility, our ability to produce ethanol and isobutanol on a commercial level and at a profit, achievement of advances in our technology platform, the success of our retrofitRetrofit production model, the availability of suitable and cost-competitive feedstocks, our ability to gain market acceptance for our products, the expected cost-competitiveness and relative performance attributes of our ethanol and isobutanol and the products derived from it,isobutanol, additional competition and changes in economic conditions, the future price and volatility of petroleum and products derived from petroleum.petroleum and statements regarding our intended uses of the proceeds of the securities offered hereby. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential” or “continue,” the negative of such terms or other comparable terminology.

Forward-looking statements reflect our current views about future events, are based on assumptions, and are subject to known and unknown risks and uncertainties. Many important factors could cause actual results, performance or achievements to differ materially from the results, performance or achievements expressed in or implied by our forward-looking statements, including the factors listed below. Many of the factors that will determine future results, performance or achievements are beyond our ability to control or predict. The following are important factors, among others, that could cause actual results, performance or achievements to differ materially from the results, performance or achievements reflected in our forward-looking statements:

 

our ability to continue as a going concern;

our intent and ability to construct additional improvements to the Luverne Facility to produce low-carbon ethanol;

our ability to continue as a going concern;

our ability to timely repay or restructure our outstanding debt obligations;

our ability to produce full-scale commercial quantities of ethanol and/or isobutanol in a timely and economic manner;

fluctuations in the market price of petroleum;

fluctuations in the market price of corn and other feedstocks;

unexpected delays, operational difficulties, cost-overruns or failures in our production processes;

our ability to successfully identify and acquire access to additional facilities suitable for production of our products;

our ability to successfully commercialize ethanol, isobutanol and the products derived from isobutanol;

our ability to market our ethanol and isobutanol to potential customers;

our ability to obtain regulatory approval for ethanol, the use of our isobutanol and the products derived from our isobutanol, including, without limitation, our renewable jet fuel, in our target markets;

our ability to adequately protect our intellectual property, or the loss of some of our intellectual property rights through costly litigation or administrative proceedings;

our ability to transition our preliminary commitments into definitive supply and distribution agreements or to negotiate sufficient long-term supply agreements for our production of isobutanol;

general economic conditions and inflation, interest rate movements and access to capital; and

our ability to effectively use the net proceeds from any offering of securities offered hereby.

 

our ability to successfully commercialize isobutanol and the products derived from it;

our ability to produce commercial quantities of isobutanol in a timely and economic manner;

unexpected delays, operational difficulties, cost-overruns or failures in the retrofit process;

our ability to successfully identify and acquire access to additional facilities suitable for efficient retrofitting;

our ability to market our isobutanol to potential customers;

fluctuations in the market price of petroleum;

fluctuations in the market price of corn and other feedstocks;

our ability to obtain regulatory approval for the use of our isobutanol in our target markets;

our ability to adequately protect our intellectual property, and prevent the loss of some of our intellectual property rights through costly litigation or administrative proceedings;

our ability to transition our preliminary commitments into definitive supply and distribution agreements or to negotiate sufficient long-term supply agreements for our production of isobutanol; and

general economic conditions and inflation, interest rate movements and access to capital.

The forward-looking statements contained herein reflect our views and assumptions only as of the date such forward-looking statements are made. You should not place undue reliance on forward-looking statements. Except as required by law, we assume no responsibility for updating any forward-looking statements nor do we

3


intend to do so. Our actual results, performance or achievements could differ materially from the results expressed in, or implied by, these forward-looking statements. The risks included in this section are not exhaustive. Additional factors that could cause actual results to differ materially from those described in the forward-looking statements are set forth in this prospectus under the heading “Risk Factors” contained in the applicable prospectus supplement and containedany related free writing prospectus, and in our most recent annual report on Form 10-K and any subsequently filed quarterly reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC. You should carefully read both this prospectus, the applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein, by reference as described under the heading “Where You Can Find Additional Information,” completely and with the understanding that our actual future results may be materially different from what we expect.

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RISK FACTORS

 

4


PROSPECTUS SUMMARY

The following summary highlights certain information containedAn investment in our securities involves risks. You should carefully consider the risks described in the sections entitled “Risk Factors” in any prospectus supplement and those set forth in documents incorporated by reference in this prospectus or incorporated by reference. This summary does not contain alland any applicable prospectus supplement, as well as other information in this prospectus and any applicable prospectus supplement, before purchasing any of our securities. Each of the information you should consider before investingrisks described in these sections and documents could materially and adversely affect our Common Stock. Before making an investment decision, you should read the entire prospectus carefully, including “Risk Factors,” together with the additional information described under the headings “Where You Can Findbusiness, financial condition, results of operations and prospects, and could result in a loss of your investment. Additional Information”risks and “Incorporationuncertainties not known to us or that we deem immaterial may also impair our business, financial condition, results of Certain Information by Reference.”operations and prospects.

Our Company

OUR COMPANY 

We are a renewable chemicals and next generation biofuels company. Our strategy is to commercialize biobased“low-carbon” fuel company focused on the development and commercialization of renewable alternatives to petroleum-based productsproducts. Low-carbon fuels reduce the carbon intensity, or the level of greenhouse gas emissions, compared to allow for the optimization of fermentation facilities’ assets, with the ultimate goal of maximizing cash flows from the operation of those assets. Our underlying technology uses a combination of synthetic biology, metabolic and chemical engineering and chemistry.standard fossil-based fuels across their lifecycle. The most common low-carbon fuels are renewable fuels. We intend to focus primarilyare focused on the development and production of mainstream fuels like gasoline and sale of isobutanoljet fuel using renewable feedstocks, that have the potential to lower greenhouse gas emissions at a meaningful scale and enhance agricultural production, including food and other related products from renewable feedstocks. Isobutanol is a four-carbon alcohol thatproducts. In addition to serving the low-carbon fuel markets, through our technology, we can be sold directlyalso serve markets for use as a specialty chemical in the production of chemical intermediate products for solvents, paintsplastics, and coatings or as a value-added gasoline blendstock. Isobutanolbuilding block chemicals.

Our proven production technologies target what we believe to be large potential markets of renewable fuels and related chemicals that can also be converted into butenes using dehydration chemistry deployedcompete directly against petrochemical products depending on the price of oil and the value of carbon intensity. Renewable fuels are one of the few fuel products where the value for renewable carbon has already been established, particularly in the refiningUnited States and petrochemicals industries today. The convertibility of isobutanol into butenes is important because butenes are primary hydrocarbon building blocks used in the production of hydrocarbon fuels, lubricants, polyester, rubber, plastics, fibers and other polymers.European Union. We believe that the products derived from isobutanol have potential applications in substantially all of the global hydrocarbondemand for low-carbon fuels market, representing a potential market for isobutanol of approximately 1,000 billion gallons per year (“BGPY”), and in approximately 40% of the global petrochemicals market, representing a potential market for isobutanol of approximately 70 BGPY. When combined with a potential specialty chemical market for isobutanol of approximately 1.2 BGPY, we believe that the potential global market for isobutanol is greater than 1,100 BGPY.

We believe that products derived from our isobutanolrenewable chemicals will be drop-in products, which means that our customers will be ablecontinue to replace petroleum-based intermediate products with renewable isobutanol-based intermediate products without modification to their equipment or production processes. The final products produced from our renewable isobutanol-based intermediate products should be chemically and physically identical to those produced from petroleum-based intermediate products, except that they will contain carbon from renewable sources. Customer interest in our renewable isobutanol is primarily driven by our production route, which we believe will be cost-efficient, and our renewable isobutanol’s potential to serve as a cost-effective, environmentally sensitive alternative to the petroleum-based intermediate products that they currently use. We believe that at every step of the value chain, renewable products that are chemically identical to the incumbent petrochemical products will have lower market adoption hurdles in contrast with other bioindustrial products because the infrastructure and applications for such products already exist. In addition, we believe that products made from biobased isobutanol will be subject to less raw material cost volatility than the petroleum-based products in use today because of the lower historical cost volatility of agricultural feedstocks compared to oil.

In order to produce and sell isobutanol made from renewable sources, we have developed the Gevo Integrated Fermentation Technology® (“GIFT®”), an integrated technology platform for the efficient production and separation of renewable isobutanol. GIFT® consists of two components, proprietary biocatalysts that convert sugars derived from multiple renewable feedstocks into isobutanol through fermentation, and a proprietary separation unit that is designed to continuously separate isobutanol during the fermentation process. We developed our technology platform to be compatible with the existing approximately 23 BGPY of global operating ethanol production capacity, as estimated by the RFA.

GIFT® is designed to permit (i) the retrofit of existing ethanol capacity to produce either isobutanol, ethanol or both products simultaneously, or (ii) the addition of renewable isobutanol or ethanol production capabilities to a facility’s existing ethanol production by adding additional fermentation capacity side-by-side with the facility’s existing ethanol fermentation capacity (collectively referred to as “Retrofit”). Having the flexibility to switch between the production of isobutanol and ethanol, or produce both products simultaneously, should allow us to optimize asset utilization and cash flows at a facility by taking advantage of fluctuations in market conditions.

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GIFT® is also designed to allow relatively low capital expenditure Retrofits of existing ethanol facilities, enabling a rapid route to isobutanol production from the fermentation of renewable feedstocks. We believe that our production route will be cost-efficient and will enable rapid deployment of our technology platform and allow our isobutanol and related renewable products to be economically competitive with many of the petroleum-based products usedgrow in the chemicals and fuels markets today.future.

We expect that the combination of our efficient proprietary technology, our marketing focus on providing drop-in substitutes for incumbent petrochemical products and our relatively low capital investment Retrofits will mitigate many of the historical issues associated with the commercialization of renewable chemicals and fuels.

We were incorporated in Delaware in June 2005 under the name Methanotech, Inc. and filed an amendment to our certificate of incorporation changing our name to Gevo, Inc. on March 29, 2006.

On April 21, 2015, we effected a reverse split of our common stock at a ratio of one-for-fifteen (the “2015 Reverse Stock Split”). On January 5, 2017, we effected a reverse split of our common stock at a ratio of one-for-twenty (the “2017 Reverse Stock Split”). On June 1, 2018, we effected a reverse split of our common stock at a ratio of one-for-twenty (the “2018 Reverse Stock Split” and, together with the 2015 Reverse Stock Split and the 2017 Reverse Stock Split, the “Reverse Stock Splits”). Unless otherwise indicated, all share amounts, per share data, share prices, exercise prices and conversion rates set forth in this prospectus have, where applicable, been adjusted retroactively to reflect the Reverse Stock Splits.

Our principal executive offices are located at 345 Inverness Drive South, Building C, Suite 310, Englewood, CO 80112, and our telephone number is (303) 858-8358. We maintain an Internet website atwww.gevo.com. Information contained in or accessible through our website does not constitute part of this prospectus.

The Offering

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Table of Contents

 

Securities offered

17,534,279 shares of Common Stock, comprised of shares of Common Stock issuable upon exercise of the Convertible Notes and shares of Common Stock that may be issuable from time to time in the event that the Company pays a portion of the interest on the Convertible Notes in kind or elects to pay make-whole payments due upon conversion of the Convertible Notes, if any, in shares of Common Stock.

Common Stock to be outstanding after the offering

86,638,284 shares

Selling Stockholder

All of the shares of Common Stock are being offered by the Selling Stockholder identified in the section titled “The Selling Stockholder” beginning on page 15 of this prospectus.

Use of Proceeds

We will not receive any of the proceeds from the Common Stock sold by the Selling Stockholder.

NASDAQ Global Market Symbol

GEVO

The above information regarding the shares of Common Stock to be outstanding after the offering is based on 69,104,005 shares of Common Stock outstanding as of June 30, 2014. As discussed in “–Private Placement of Convertible Notes” below, the Selling Stockholder is subject to certain beneficial ownership limitations.

RATIO OF EARNINGS TO FIXED CHARGES

 

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The following is a summarytable sets forth consolidated ratio of earnings to fixed charges for each of the transactions relating tolast five fiscal years and for the securities being registered hereunder:

Private Placement of Convertible Notes

To obtain funding for our ongoing obligations, we entered into a Term Loan Agreement, dated May 9, 2014, with Agri-Energy, LLC and Gevo Development, LLC, as guarantors (the “Guarantors”), the lenders party thereto from time to time (each, a “Lender” and collectively, the “Lenders”) and WB Gevo, Ltd. (as successorsix months ended June 30, 2018. You should read this table in interest to Whitebox Advisors LLC), as administrative agent (the “Whitebox Loan Agreement”), pursuant to which the Lenders committed to provide one or more senior secured term loans to the Company in an aggregate amount of up to approximately $31.1 million on the terms and conditions set forth in the Whitebox Loan Agreement (collectively, the “Term Loan”). The first advance of the Term Loan in the amount of approximately $25.9 million was paid to the Company on May 9, 2014. In connectionconjunction with the first advance, the Lenders received a structuring fee in an amount equal to 3.5% of such advance. We also paid all reasonable out of pocket expenses, including legal fees, of the Lendersconsolidated financial statements and the administrative agent in connection with the Term Loan and have agreed to pay any such expenses associated with the Purchase Agreement (as defined below) and Registration Rights Agreement (as defined below).

On June 6, 2014, the Lenders exercised their option under that certain Exchange and Purchase Agreement, dated May 9, 2014, by and among the Company, the Guarantors, WB Gevo, Ltd. and the other Lenders party thereto from time to time, and WB Gevo, Ltd. (as successor in interest to Whitebox Advisors LLC), in its capacity as administrative agent and representative for the Lenders (the “Purchase Agreement”), to convert approximately $26.1 million in outstanding principal and interest under the Term Loan into Convertible Notes. In connection with the issuance of the Convertible Notes, the Company entered into an Indenture (the “Indenture”), dated June 6, 2014, with the Guarantors and Wilmington Savings Fund Society FSB, as trustee and collateral trustee.

The Convertible Notes bear interest at a rate of 10% per annum, payable on March 31, June 30, September 30, and December 31 of each year. Additional interest of 2% per annum may also accrue on the outstanding Convertible Notes, at the election of the holders of a majority of the outstanding Convertible Notes, during any period in which an event of default under the Indenture has occurred and has not been cured or waived. The interest on the Convertible Notes will be payable in cash unless (i) no event of default has occurred and is continuing and (ii) the last reported sales price of our Common Stock on the 10th trading day immediately preceding the relevant interest payment date is more than $1.10 per share, in which case 50% of the interest on the Convertible Notes will be payable in cash and 50% of the interest on the Convertible Notes will be payable in kind. While the Convertible Notes are outstanding, we will be required to maintain an interest reserve in an amount equal to 10% of the aggregate unpaid principal amount of the Convertible Notes (including any capitalized and uncapitalized interest that is paid in kind). The Convertible Notes will mature on March 15, 2017.

The Convertible Notes are secured by a lien on substantially all of the assets of the Company and are guaranteed by the Guarantors. On June 6, 2014, in connection with the issuance of the Convertible Notes, the Company and the Guarantors entered into a Pledge and Security Agreement in favor of the collateral trustee. The collateral pledged includes substantially all of the assets of the Company and the Guarantors, including intellectual property and real property. Agri-Energy, LLC has also entered into an Amended and Restated Mortgage with respect to the real property located in Luverne, MN.

The holders of the Convertible Notes may, at any time until the close of business on the business day immediately preceding the maturity date, convert the principal amount of the Convertible Notes, or any portion of such principal amount which is at least $1,000, into shares of our Common Stock. Upon conversion of the Convertible Notes, we will deliver shares of our Common Stock at an initial conversion rate of 0.8633 shares of Common Stock per $1.00 principal amount of the Convertible Notes (equivalent to an initial conversion price of approximately $1.1584 per share of Common Stock). Such conversion rate is subject to adjustment in certain circumstances, including in the event that there is a dividend or distribution paid on shares of the Common Stock or a subdivision, combination or reclassification of the Common Stock. The Company also has the right to increase the conversion rate (i) by any amount for a period of at least 20 business days if the Company’s board of directors determines that such increase would be in the Company’s best interest or (ii) to avoid or diminish any income tax to

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holders of shares of Common Stock or rights to purchase shares of Common Stock in connection with any dividend or distribution. In addition, subject to certain conditions described herein, each holder who exercises its option to voluntarily convert its Convertible Notes will receive a make-whole payment in an amount equal to any unpaid interest that would otherwise have been payable on such Convertible Notes through the maturity date (a “Voluntary Conversion Make-Whole Payment”). Subject to certain limitations, we may pay any Voluntary Conversion Make-Whole Payments either in cash or in shares Common Stock, at our election.

Pursuant to the terms of the Indenture, a holder may not convert the Convertible Notes into shares of our Common Stock to the extent that, after giving effect to such conversion, the number of shares of our Common Stock beneficially owned by such holder and its affiliates would exceed 4.99% of our Common Stock outstanding at the time of such conversion; provided that a holder may, at its option and upon not less than 61 days’ prior notice, increase such threshold to an amount not in excess of 9.99%. Subject to the foregoing limitations, the Convertible Notes are convertible into shares of our Common Stock at any time.

The Indenture also contains limitations on the ability of certain holders to assign or otherwise transfer their interests in the Convertible Notes.

Beginning on December 6, 2014, we will have the right to require holders of the Convertible Notes to convert all or part of the Convertible Notes into shares of our Common Stock if the last reported sale price of our Common Stock over any 10 consecutive trading days equals or exceeds 150% of the applicable conversion price (a “Mandatory Conversion”). Each holder whose Convertible Notes are converted in a Mandatory Conversion will receive a make-whole payment for the converted notes in an amount equal to any unpaid interest that would have otherwise been payable on such Convertible Notes through the maturity date (a “Mandatory Conversion Make-Whole Payment”). Subject to certain limitations, we may pay any Mandatory Conversion Make-Whole Payments either in cash or in shares of Common Stock, at our election.

If a fundamental change of the Company occurs, the holders of Convertible Notes may require us to repurchase all or a portion of the Convertible Notes at a cash repurchase price equal to 100% of the principal amount of such Convertible Notes, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date, plus a cash make-whole payment for the repurchased Convertible Notes in an amount equal to any unpaid interest that would otherwise have been payable on such Convertible Notes through the maturity date.

Pursuant to the terms of the Purchase Agreement, we have an option, subject to certain conditions and for a limited period of time following the date of the Purchase Agreement, to require the Lenders to provide the Company with an additional $5.2 million (subject to a structuring fee in an amount equal to 3.5% ) by means of (i) a second advance under the Term Loan, which would also be exchangeable into Convertible Notes, (ii) the purchase by the Lenders of additional Convertible Notes or (iii) a combination thereof (the allocation to be determined by the administrative agent). The Purchase Agreement also provides the Lenders with an option, subject to certain conditions, to purchase up to an additional $32.0 million aggregate principal amount of Convertible Notes.

The potential issuance of more than 19.99% of our Common Stock upon conversion of the Convertible Notes was approved by our stockholders at the annual meeting held on July 3, 2014.

In connection with the transactions described above, we also entered into a Registration Rights Agreement, dated May 9, 2014 (the “Registration Rights Agreement”) with WB Gevo, Ltd. and the other parties thereto from time to time, pursuant to which we have agreed to, among other things, file a registration statement on Form S-3 registering the resale of the shares of our Common Stock underlying the Convertible Notes.

We are obligated to cause the registration statement to be filed no later than July 11, 2014 and declared effective no later than October 4, 2014. We are also obligated to use our reasonable best efforts to ensure that the registration statement remains in effect until all of the securities covered by the registration statement have been sold or may be sold without volume restrictions and without the need for current public information pursuant to Rule 144 promulgated by the SEC under the Securities Act. The registration statement to which this prospectus relates is intended to fulfill, in part, our obligations under the Registration Rights Agreement with respect the Convertible Notes issued by the Company on June 6, 2014.

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In accordance with the terms of the Registration Rights Agreement, we will be required to file another registration statement with respect to the remaining shares of Common Stock underlying the outstanding Convertible Notes and any other shares of Common Stock that may be issuable from time to time in the event that the Company pays a portion of the interest on the Convertible Notes in kind or elects to pay make-whole payments due upon conversion of the Convertible Notes, if any, in shares of Common Stock, as well as the shares of Common Stock underlying any additional Convertible Notes that may be issued pursuant to the terms of the Purchase Agreement.

In the event of a default of our obligations under the Registration Rights Agreement, we will be required to pay an increased interest rate of 0.50% on the principal amount of any Convertible Notes that are effected by such default for each month that the registration statement has not been filed or declared effective, as the case may be.

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RISK FACTORS

An investment in our Common Stock involves a substantial risk of loss. You should carefully consider these risk factors, together with all of the other information included or incorporated by reference in this prospectus and any accompanying prospectus supplement, as modified and superseded pursuant to Rule 412 under the Securities Act, before you decide to invest in our Common Stock. The occurrence of any of the following risks could harm our business. In that case, the trading price of our Common Stock could decline, and you may lose all or part of your investment. Additional risks and uncertainties not presently known to us or that we currently believe are immaterial may also impair our business operations and our liquidity. You should also refer to the other information contained in this prospectus and any accompanying prospectus supplement or incorporated by reference herein or therein, including our financial statements and the notes to those statements and the information set forth under the heading “Cautionary Note Regarding Forward-Looking Statements.”

Our auditors have expressed substantial doubt about our ability to continue as a going concern, which may hinder our ability to obtain further financing.

Our audited financial statements for the year ended December 31, 2013, were prepared under the assumption that we would continue our operations as a going concern. Our independent registered public accounting firm has included a “going concern” explanatory paragraph in its report on our financial statements for the year ended December 31, 2013, indicating that the amount of working capital at December 31, 2013 was not sufficient to meet the cash requirements to fund planned operations through December 31, 2014 without additional sources of cash, which raises substantial doubt about our ability to continue as a going concern. Uncertainty concerning our ability to continue as a going concern may hinder our ability to obtain future financing. Continued operations and our ability to continue as a going concern are dependent on our ability to obtain additional funding in the near future and thereafter, and there are no assurances that such funding will be available to us at all or will be available in sufficient amounts or on reasonable terms. Our financial statements do not include any adjustments that may result from the outcome of this uncertainty. Without additional funds from private and/or public offerings of debt or equity securities, sales of assets, sales or out-licenses of intellectual property or technologies, or other transactions, we will exhaust our resources and will be unable to continue operations. If we cannot continue as a viable entity, our stockholders would likely lose most or all of their investment in us.

We may incur additional indebtedness in the future. Any future indebtedness we incur exposes us to risks that could adversely affect our business, financial condition and results of operations.

As of June 30, 2014, the aggregate amount of the outstanding principal and final payments under our amended and restated loan and security agreement with TriplePoint Capital LLC (“TriplePoint”) was approximately $11.1 million and we had $26.1 million in outstanding Convertible Notes and $26.9 million in outstanding 7.5% Convertible Senior Notes due 2022 which were issued by the Company in July 2012 (the “July Notes” and, together with the Convertible Notes, the “Notes”). Our indebtedness could have significant negative consequences for our business, results of operations and financial condition, including:prospectus.

 

  

Year Ended December 31

  

Six Months

 
  

2013

  

2014

  

2015

  

2016

  

2017

  Ended
June 30, 2018
 

Ratio of earnings to fixed charges (1)

  (2)  (2)  (2)  (2)  (2)  (2)

(1)

For purposes of calculating the ratio of earnings to fixed charges, earnings available for fixed charges consists of loss from continuing operations and fixed charges, less capitalized interest. Fixed charges consist of interest expense, amortization of debt expense, capitalized interest and an estimate of interest component of rent expense. No preferred stock dividends were paid during the periods presented.

(2)

The ratio coverage for the years ended December 31, 2013, 2014, 2015, 2016 and 2017, and for the six months ended June 30, 2018, was less than 1:1 in each of these periods. We would have needed to generate additional earnings of $55.7 million, $39.8 million, $31.9 million, $24.0 million, $23.3 million and $9.4 million in the years ended December 31, 2013, 2014, 2015, 2016 and 2017, and for the six months ended June 30, 2018, respectively, to achieve a coverage ratio of 1:1 in each of these periods.

increasing our vulnerability to adverse economic and industry conditions;
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Table of Contents

 

limiting our ability to obtain additional financing;

requiring the dedication of a substantial portion of our cash flow from operations to service our indebtedness, thereby reducing the amount of our cash flow available for other purposes;

limiting our flexibility in planning for, or reacting to, changes in our business; and

placing us at a possible competitive disadvantage with less leveraged competitors and competitors that may have better access to capital resources.

We cannot assure you that we will continue to maintain sufficient cash reserves or that our business will generate cash flow from operations at levels sufficient to permit us to pay principal, premium, if any, and interest on our indebtedness, or that our cash needs will not increase. If we are unable to generate sufficient cash flow or

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otherwise obtain funds necessary to make required payments, or if we fail to comply with the various requirements of our existing indebtedness or any other indebtedness which we may incur in the future, we would be in default, which would permit the holders of the Notes and such other indebtedness to accelerate the maturity of the Notes and such other indebtedness and could cause defaults under the Notes and such other indebtedness. Any default under the Notes or such other indebtedness could have a material adverse effect on our business, results of operations and financial condition.

In particular, the Convertible Notes and our indebtedness with TriplePoint are secured by liens on substantially all of our assets, including our intellectual property. If we are unable to satisfy our obligations under such instruments, the holders of the Convertible Notes or TriplePoint, as applicable, could foreclose on our assets, including our intellectual property. Any such foreclosure could force us to substantially curtail or cease our operations which could have a material adverse effect on our business, financial condition and results of operations.

Future issuances of our Common Stock or instruments convertible or exercisable into our Common Stock, including in connection with conversions of Notes or exercises of Warrants (as defined below), may materially and adversely affect the price of our Common Stock and cause dilution to our existing stockholders.

We may obtain additional funds through public or private debt or equity financings in the near future, subject to certain limitations in the agreements governing our indebtedness, including our secured indebtedness with Whitebox and/or TriplePoint. If we issue additional shares of Common Stock or instruments convertible into Common Stock, it may materially and adversely affect the price of our Common Stock. In addition, the conversion of some or all of the Notes and/or the exercise of some or all of the warrants to purchase 21,303,750 shares of Common Stock that were issued by the Company in December 2013 (the “Warrants”) may dilute the ownership interests of our stockholders, and any sales in the public market of any of our Common Stock issuable upon such conversion or exercise could adversely affect prevailing market prices of our Common Stock. Additionally, under the terms of the Warrants, in the event that a Warrant is exercised at a time when we do not have an effective registration statement covering the underlying shares of Common Stock on file with the SEC, such Warrant must be net exercised, which will dilute the ownership interests of existing stockholders without any corresponding benefit to the Company of a cash payment for the exercise price of such Warrant.

As of June 30, 2014, we had $26.9 million in outstanding July Notes, which were convertible into 10,682,401 shares of Common Stock at the conversion rate in effect on June 30, 2014 (which amount includes 5,956,887 shares of Common Stock issuable in full satisfaction of the coupon make-whole payments due in connection therewith). The anticipated conversion of the $26.9 million in outstanding July Notes into shares of our Common Stock could depress the trading price of our Common Stock. In addition, we have the option to issue Common Stock to any converting holder in lieu of making any required coupon make-whole payment in cash. If we elect to issue our Common Stock for such payment, the stock will be valued at 90% of the simple average of the daily volume weighted average prices of our Common Stock for the 10 trading days ending on and including the trading day immediately preceding the conversion date. If our stock price decreases, the number of shares we would be required to deliver in connection with the coupon make-whole payments would increase. Given that the agreements governing our indebtedness, including our secured indebtedness with Whitebox and/or TriplePoint, may prohibit us from paying, repurchasing or redeeming the July Notes or making cash payments in respect of the coupon make-whole payments due upon a conversion, we may be unable to make such payment in cash. If we issue additional shares of our Common Stock in satisfaction of such payments, this may cause significant additional dilution to our existing stockholders.

As of June 30, 2014, we had $26.1 million in outstanding Convertible Notes, which were convertible into 29,024,778 shares of our Common Stock at the conversion rate in effect on June 30, 2014, as described above under the heading “Prospectus Summary—Private Placement of Convertible Notes.” The 29,024,778 shares includes 6,486,795 shares of Common Stock that may be issuable from time to time in the event that the Company pays a portion of the interest on the Convertible Notes in kind or elects to paymake-whole payments due upon conversion of the Convertible Notes, if any, in shares of Common Stock. The anticipated conversion of the principal amount of the Convertible Notes (including any interest that is paid in kind) into shares of our Common Stock could depress the trading price of our Common Stock. In addition, subject to certain restrictions, we have the option to issue

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Common Stock to any converting holder in lieu of making any required make-whole payment in cash. If we elect to issue our Common Stock for such payment, it will be at the same conversion rate that is applicable to conversions of the principal amount of the Convertible Notes. If we elect to issue additional shares of our Common Stock for such payments, this may cause significant additional dilution to our existing stockholders.

The terms of the agreements governing our indebtedness, including our secured indebtedness with Whitebox and/or TriplePoint and the indentures governing the Notes, may restrict our ability to engage in certain transactions.

The terms of the agreements governing our indebtedness, including our secured indebtedness with Whitebox and/or TriplePoint and the indentures governing the Notes, may prohibit us from engaging in certain actions, including disposing of certain assets, granting or otherwise allowing the imposition of a lien against certain assets, incurring certain kinds of additional indebtedness or acquiring or merging with other entities unless we receive the prior approval of the applicable lender or the requisite holders of the Notes. If we are unable to obtain such approval, we could be prohibited from engaging in transactions which could be beneficial to our business and our stockholders or could be forced to repay such indebtedness in full.

The indentures governing the Notes may prohibit us from engaging in certain mergers or acquisitions and if a fundamental change of the Company occurs prior to the maturity date of the Notes, holders of the Notes will have the right, at their option, to require us to repurchase all or a portion of their Notes and, in certain circumstances, to pay the holders of Convertible Notes a make-whole payment equal to the aggregate amount of interest that would have been payable on such Convertible Notes from the repurchase date through the maturity date of such Convertible Notes. With respect to the July Notes, if a fundamental change occurs prior to the maturity date of the July Notes, we will in some cases be required to increase the conversion rate for a holder that elects to convert its July Notes in connection with such fundamental change. With the respect to the Convertible Notes, the Company has the right to increase the conversion rate of the Convertible Notes by any amount for a period of at least 20 business days if the Company’s board of directors determines that such increase would be in the Company’s best interest. In addition, if an extraordinary transaction occurs, holders of Warrants will have the right, at their option, to require us to repurchase the unexercised portion of such Warrants for an amount in cash equal to the value of the Warrants, as determined in accordance with the Black Scholes option pricing model and the terms of the Warrants. These and other provisions could prevent or deter a third party from acquiring us, even where the acquisition could be beneficial to you.

The conversion or exercise prices, as applicable, of the Notes and Warrants can fluctuate under certain circumstances which, if triggered, can result in potentially material further dilution to our stockholders.

The conversion price of the July Notes can fluctuate in certain circumstances, including in the event that we undertake certain stock dividends, splits, combinations or distributions or if there is a fundamental change prior to the maturity date of the July Notes. In such instances, the conversion price of the July Notes can fluctuate materially lower than the initial conversion price of $5.69 per share. The conversion price of the Convertible Notes can fluctuate in certain circumstances, including in the event that there is a dividend or distribution paid on shares of our Common Stock or a subdivision, combination or reclassification of our Common Stock. In such instances, the conversion price of the Convertible Notes can fluctuate materially lower than the initial conversion price of $1.1584 per share. The number of shares of Common Stock for which the Warrants are exercisable and the price at which such shares of Common Stock may be purchased upon exercise of the Warrants may be adjusted in the event that (i) we undertake certain stock dividends, splits, combinations, distributions, or (ii) we undertake certain issuances of Common Stock or convertible securities at prices lower than the then–current exercise price for the Warrants. These provisions could result in substantial dilution to investors in our Common Stock.

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The interest rates of the Notes can fluctuate under certain circumstances which, if triggered, can result in potentially material further dilution to our stockholders.

The interest rates of the Notes can fluctuate in certain circumstances, including in the event of a default of our obligations under the indentures governing the Notes or the Registration Rights Agreement as described above under the heading “Prospectus Summary—Private Placement of Convertible Notes.” In addition, the interest on the Convertible Notes will be payable 50% in cash and 50% in kind if (i) no event of default has occurred and is continuing under the indenture governing the Convertible Notes and (ii) the last reported sales price of our Common Stock on the 10th trading day immediately preceding the relevant interest payment date is more than $1.10 per share. As the Company may be required to pay a portion of the interest on the Convertible Notes in kind, by either increasing the principal amount of the outstanding Convertible Notes or issuing additional Convertible Notes, any increase to the interest rate applicable to the Convertible Notes could result in additional dilution to investors in our Common Stock.

Our Common Stock may be delisted from The NASDAQ Global Market, which could affect its market price and liquidity.

We are required to continually meet the listing requirements of The NASDAQ Global Market (including a minimum bid price for our common stock of $1.00 per share) to maintain the listing of our common stock on The NASDAQ Global Market. On June 30, 2014, we received a deficiency letter from The NASDAQ Global Market indicating that for 30 consecutive trading days our common stock had a closing bid price below the $1.00 per share minimum. In accordance with NASDAQ Listing Rules, we were provided a compliance period of 180 calendar days, or until December 29, 2014, to regain compliance with this requirement. We can regain compliance with the minimum closing bid price requirement if the bid price of our Common Stock closes at $1.00 per share or higher for a minimum of 10 consecutive business days. If we do not regain compliance with the minimum closing bid price requirement during the initial 180-day compliance period, we may be eligible for an additional 180-day compliance period if we transfer the listing of our Common Stock to The NASDAQ Capital Market, provided that we meet the continued listing requirement for market value of publicly held shares and all other initial listing standards, with the exception of the bid price requirement. If we do not regain compliance with the minimum closing bid price requirement during this second 180-day compliance period, NASDAQ will provide written notice that our securities are subject to delisting. At such time, we would be entitled to appeal the delisting determination to a NASDAQ Listing Qualifications Panel. We cannot provide any assurance that our stock price will recover within the permitted grace period. If our Common Stock is delisted, it could be more difficult to buy or sell our Common Stock and to obtain accurate quotations, and the price of our stock could suffer a material decline. Delisting would constitute a fundamental change under the indenture governing the Convertible Notes and we could be required to repurchase all or a portion of the Convertible Notes. Delisting may also impair our ability to raise capital.

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USE OF PROCEEDS

This

Unless otherwise indicated in the applicable prospectus relatessupplement, we intend to shares of our Common Stock that may be offered and sold from time to time byuse the Selling Stockholder. We will not receive any of thenet proceeds resulting from the sale of Common Stockany securities offered by the Selling Stockholder.

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THE SELLING STOCKHOLDER

This prospectus relates to the resale by the Selling Stockholder named below, from time to time, of up to 17,534,279 shares of our Common Stock issued or issuable to the Selling Stockholder upon the conversion of the Convertible Notes, as described aboveus under the heading “Prospectus Summary—Private Placement of Convertible Notes.” The 17,534,279 shares includes shares of our Common Stock issuable upon conversion of the Convertible Notes and shares of Common Stock that may be issuable from time to time in the event that the Company pays a portion of the interest on the Convertible Notes in kind or elects to pay make-whole payments due upon conversion of the Convertible Notes, if any, in shares of Common Stock.

We do not know when or in what amounts the Selling Stockholder may sell or otherwise dispose of the shares covered hereby. The Selling Stockholder might not sell any or all of the shares covered by this prospectus for general corporate purposes, which may include, among others, repayment or may sellrefinancing of debt, acquisitions, working capital, capital expenditures, and repurchases or disposeredemptions of some or all of the shares other than pursuant to this prospectus. Because the Selling Stockholder may not sell or otherwise dispose of some or all of the shares covered by this prospectus and because there are currently no agreements, arrangements or understandings with respect to the sale or other disposition of any of the shares, we cannot estimate the number of the shares that will be held by the Selling Stockholder after completion of the offering. For purposes of the table below, we have assumed that the Selling Stockholder will have sold all of the shares covered by this prospectus upon completion of the applicable offering.

WB Gevo, Ltd., is currently the sole Selling Stockholder and, to date, is the sole Lender under the Whitebox Loan Agreement and the Purchase Agreement described above under the heading “Prospectus Summary—Private Placement of Convertible Notes.” Pursuant to the terms of the Purchase Agreement, we have an option, subject to certain conditions and for a limited period of time following the date of the Purchase Agreement, to require the Lenders to provide the Company with an additional $5.2 million (subject to a structuring fee in an amount equal to 3.5% ) by means of (i) a second advance under the Term Loan, which would also be exchangeable into Convertible Notes, (ii) the purchase by the Lenders of additional Convertible Notes or (iii) a combination thereof (the allocation to be determined by the administrative agent). The Purchase Agreement also provides the Lenders with an option, subject to certain conditions, to purchase up to an additional $32.0 million aggregate principal amount of Convertible Notes.

Except for the lending relationship described above, the Selling Stockholder has not held any position or office or had any other material relationship with us or any of our predecessors or affiliates within the past three years other than as a result of the ownership of our securities. In addition, unless otherwise indicated in the footnotes below, we believe that: (i) the Selling Stockholder is not a broker-dealer or an affiliate of a broker-dealer, (ii) the Selling Stockholder does not have any direct or indirect agreements or understandings with any person to distribute its shares, and (iii) the Selling Stockholder has sole voting and investment power with respect to all shares beneficially owned, subject to applicable community property laws.

The Selling Stockholder has represented to us in writing that it acquired the securities or will acquire the underlying securities for its own account and not with a view to or for distributing or reselling such securities. In recognition of the fact that the Selling Stockholder, even though purchasing the shares for its own account, may wish to be legally permitted to sell its securities when it deems appropriate, we agreed with the Selling Stockholder to file a registration statement to register the resale of the securities. We also have agreed to use reasonable best efforts to keepwill retain broad discretion over the registration statement,allocation of which this prospectus constitutes a part, effective until all of the securities covered by the registration statement have been sold or may be sold without volume restrictions and without the need for current public information pursuant to Rule 144 promulgated by the SEC under the Securities Act.

The table below presents information regarding the Selling Stockholder and the shares of our Common Stock that it may sell or otherwise dispose of from time to time under this prospectus. The percentage of beneficial ownership is based upon 69,104,005 shares of Common Stock issued and outstanding as of June 30, 2014. Beneficial ownership is determined under Section 13(d) of the Exchange Act and generally includes voting or investment power with respect to securities and includes any securities that grant the Selling Stockholder the right to acquire Common Stock within 60 days of June 30, 2014. The number of shares in the column “Common Stock Owned Prior to

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Offering” assumes that: (i) the full principal amount of the Convertible Notes (including all interest that is payable in kind) is converted into shares of Common Stock, and (ii) the Company pays all make-whole payments, if any, that are due upon such conversion in shares of Common Stock. The information in the table below is based on information provided by or on behalf of the Selling Stockholder. Since the date on which it provided us with the information below, the Selling Stockholder may have sold, transferred or otherwise disposed of some or all of its shares in transactions exempt from the registration requirements of the Securities Act.

Pursuant to the terms of the Indenture, a holder may not convert the Convertible Notes into shares of our Common Stock to the extent that, after giving effect to such conversion, the number of shares of our Common Stock beneficially owned by such holder and its affiliates would exceed 4.99% of our Common Stock outstanding at the time of such conversion; provided that a holder may, at its option and upon not less than 61 days’ prior notice, increase such threshold to an amount not in excess of 9.99%. Subject to the foregoing limitations, the Convertible Notes are convertible into shares of our Common Stock at any time.

Name of Selling Stockholder  Common Stock Owned
Prior to Offering(1)
   Maximum Number
of Shares of
Common Stock to be
Offered Pursuant to
this Prospectus
   Common Stock Owned After
Offering(2)
 
   Number   Number   Number   Percent 

WB Gevo, Ltd.(3)

   29,024,778     17,534,279     11,490,499     11.7

(1)The number of shares consists of the aggregate of the number of shares of Common Stock held by the Selling Stockholder and shares of Common Stock issuable upon exercise of Convertible Notes held by such Selling Stockholder. These figures do not take into account any restrictions on the Selling Stockholder’s ability to exercise its conversion rights to the extent that, after giving effect to such conversion, the number of shares of our Common Stock beneficially owned by the Selling Stockholder and its affiliates would exceed 4.99% or 9.99% of our Common Stock outstanding at the time of such conversion. In addition to the shares set forth in the table, the number of shares to be sold includes an indeterminate number of shares issuable upon conversion of the Convertible Notes, as such number may be adjusted as a result of stock splits, stock dividends and similar transactions in accordance with Rule 416 under the Securities Act.
(2)For purposes of this table, the Company assumes that all of the shares covered by this prospectus will be sold by the Selling Stockholder.
(3)Andrew Redleaf exercises voting and dispositive power over the securities owned by WB Gevo, Ltd., all of which were acquired in the private placement described above under the heading “Prospectus Summary—Private Placement of Convertible Notes.”

Each time the Selling Stockholder sells any shares of Common Stock offered by this prospectus, it is required to provide you with this prospectus and the related prospectus supplement, if any, containing specific information about the Selling Stockholder and the terms of the shares of Common Stock being offered in the manner required by the Securities Act.

No offer or sale may occur unless the registration statement that includes this prospectus has been declared effective by the SEC and remains effective at the time the Selling Stockholder offers or sells shares of Common Stock. We are required, under certain circumstances, to update, supplement or amend this prospectus to reflect material developments in our business, financial position and results of operations and may do so by an amendment to this prospectus, a prospectus supplement or a future filing with the SEC incorporated by reference in this prospectus.

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PLAN OF DISTRIBUTION

We are registering the shares of Common Stock on behalf of the Selling Stockholder to permit resales of the Common Stock by the holder from time to time after the date of this prospectus. We will not receive any of thenet proceeds from the sale of any securities offered by the Selling Stockholder of the Common Stock. Sales of shares may be made by the Selling Stockholder, including its transferees, donees, pledgees or other successors–in–interest directly to purchasers or to or through underwriters, broker–dealers or through agents. Sales may be made from time to time on the NASDAQ Global Market, any other exchange or market upon which our shares may trade in the future, in the over–the–counter market, in private transactions or otherwise, at market prices prevailing at the time of sale, at prices related to market prices, or at negotiated or fixed prices. The shares may be sold by one or more of, or a combination of, the following and these sales may be effected in transactions that may involve crosses or block transactions:us.

 

on any national securities exchange or quotation service on which the securities may be listed or quoted at the time
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Table of sale;Contents

 

in the over-the-counter market;

in transactions otherwise than on these exchanges or systems or in the over-the-counter market;

through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise;

in ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

in block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

through purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

in an exchange distribution in accordance with the rules of the applicable exchange;

in privately negotiated transactions;

in short sales;

in sales pursuant to Rule 144;

whereby broker-dealers may agree with the Selling Stockholder to sell a specified number of such shares at a stipulated price per share;

in a combination of any such methods of sale; and

in any other method permitted pursuant to applicable law.

If the Selling Stockholder effects such transactions by selling shares of Common Stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the Selling Stockholder or commissions from purchasers of the shares of Common Stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of Common Stock or otherwise, the Selling Stockholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of Common Stock in the course of hedging in positions they assume. The Selling Stockholder may also sell shares of Common Stock short and deliver shares of Common Stock covered by

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this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The Selling Stockholder may also loan or pledge shares of Common Stock to broker-dealers that in turn may sell such shares.

The Selling Stockholder may pledge or grant a security interest in some or all of the Convertible Notes or shares of Common Stock owned by it and, if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of Common Stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act. In such a case, we will amend, if necessary, the list of selling stockholders to include each transferee, donee, pledgee or other successor in interest as a selling stockholder under this prospectus. The Selling Stockholder also may transfer and donate the shares of Common Stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

The Selling Stockholder and any broker-dealers participating in the distribution of the shares of Common Stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of Common Stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of Common Stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the Selling Stockholder and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers. If the Selling Stockholder is deemed to be an “underwriter” within the meaning of the Securities Act, it will be subject to the prospectus delivery requirements of the Securities Act and may be subject to certain statutory and regulatory liabilities, including liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange Act. We will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the Selling Stockholder for the purpose of satisfying the prospectus delivery requirements of the Securities Act.

Under the securities laws of some states, the shares of Common Stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of Common Stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.

There can be no assurance that the Selling Stockholder will sell any or all of the shares of Common Stock registered pursuant to the registration statement, of which this prospectus forms a part.

The Selling Stockholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act or the Securities Act, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Common Stock by the Selling Stockholder and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Common Stock to engage in market-making activities with respect to the shares of Common Stock. All of the foregoing may affect the marketability of the shares of Common Stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Common Stock.

We have agreed to use reasonable best efforts to keep the registration statement, of which this prospectus constitutes a part, effective until all of the securities covered by the registration statement have been sold or may be sold without volume restrictions and without the need for current public information pursuant to Rule 144 promulgated by the SEC under the Securities Act. We will pay all expenses of the registration of the shares of Common Stock pursuant to the Registration Rights Agreement, including, without limitation, SEC filing fees and expenses of compliance with state securities or “Blue Sky” laws; provided, however, that the Selling Stockholder will pay all underwriting fees, discounts and selling commissions, if any. We will indemnify the Selling Stockholder against liabilities, including some liabilities under the Securities Act, in accordance with the Registration Rights Agreement, or the Selling Stockholder will be entitled to contribution. We may be indemnified

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by the Selling Stockholder against civil liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by the Selling Stockholder specifically for use in this prospectus, in accordance with the Registration Rights Agreement, or we may be entitled to contribution.

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DESCRIPTION OF COMMONCAPITAL STOCK

Authorized and Outstanding Capital Stock

Our authorized capital stock consists of 250,000,000 shares of Common Stock,common stock, par value $0.01 per share, and 10,000,000 shares of preferred stock, par value $0.01 per share, issuable in one or more series designated by our board of directors. As of June 30, 2014,July 31, 2018, there were 69,104,0058,085,084 shares of Common Stockcommon stock and no shares of preferred stock outstanding.

Common Stock

The holders of our Common Stockcommon stock have one vote per share. Holders of Common Stockcommon stock are not entitled to vote cumulatively for the election of directors. Generally, all matters to be voted on by stockholders must be approved by a majority, or, in the case of election of directors, by a plurality, of the votes cast at a meeting at which a quorum is present, voting together as a single class, subject to any voting rights granted to holders of any then outstanding preferred stock. Subject to preferences that may be applicable to any then outstanding preferred stock, holders of our Common Stockcommon stock are entitled to participate equally in dividends when and as dividends may be declared by our board of directors out of funds legally available for the payment of dividends. In the event of our voluntary or involuntary liquidation, dissolution or winding up, the prior rights of our creditors and the liquidation preference of any preferred stock then outstanding must first be satisfied. The holders of Common Stockcommon stock will be entitled to share in the remaining assets on a pro rata basis. No shares of Common Stockcommon stock are subject to redemption or have redemptive rights to purchase additional shares of Common Stock.common stock.

Our Common Stockcommon stock is listed on the NASDAQ GlobalNasdaq Capital Market under the symbol “GEVO.”“GEVO”.

Preferred Stock

Our amended and restated certificate of incorporation provides that we may issue shares of preferred stock from time to time in one or more series. Our board of directors is authorized to fix the voting rights, if any, designations, powers, preferences, qualifications, limitations and restrictions thereof, applicable to the shares of each series of preferred stock. Our board of directors may, without stockholder approval, issue preferred stock with voting and other rights that could adversely affect the voting power and other rights of the holders of our common stock, including the likelihood that such holders will receive dividend payments and payments upon liquidation, and could have anti-takeover effects, including preferred stock or rights to acquire preferred stock in connection with implementing a stockholder rights plan. The ability of our board of directors to issue preferred stock without stockholder approval could have the effect of delaying, deferring or preventing a change of control or the removal of our existing management. There are currently no shares of preferred stock outstanding.

Anti-Takeover Provisions

The provisions of the Delaware General Corporation Law (the “DGCL”), our amended and restated certificate of incorporation, and our amended and restated bylaws contain provisions that could discourage or make more difficult a change in control of Gevo®,us, including an acquisition of Gevo®us by means of a tender offer, a proxy contest and removal of our incumbent officers and directors, without the support of our board of directors. A summary of these provisions follows.

Statutory Business Combination Provision

We are subject to Section 203 of the DGCL, (“Section 203”), which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any “business combination” with an “interested stockholder” for a period of three years following the time that such stockholder became an interested stockholder, unless:

 

the board of directors of the corporation approves either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder, prior to the time the interested stockholder attained that status;

upon the closing 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 by persons who are directors and also officers and 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

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upon the closing 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 by persons who are directors and also officers and 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

at or subsequent to such time, 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.

 

at or subsequent to such time, 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.

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With certain exceptions, an “interested stockholder” is a person or group who or which owns 15% or more of the corporation’s outstanding voting stock (including any rights to acquire stock pursuant to an option, warrant, agreement, arrangement or understanding, or upon the exercise of conversion or exchange rights, and stock with respect to which the person has voting rights only), or is an affiliate or associate of the corporation and was the owner of 15% or more of such voting stock at any time within the previous three years.

In general, Section 203 defines a business combination to include:

 

any merger or consolidation involving the corporation and the interested stockholder;

any merger or consolidation involving the corporation and the interested stockholder;

 

any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;

any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;

 

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;

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;

 

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

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

 

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.

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.

A Delaware corporation may “opt out” of this provision with an express provision in its original certificate of incorporation or an express provision in its amended and restated certificate of incorporation or bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. However, Gevo® haswe have not “opted out” of this provision. Section 203 could prohibit or delay mergers or other takeover or change-in-control attempts and, accordingly, may discourage attempts to acquire Gevo®.us.

Election and Removal of Directors

Our amended and restated certificate of incorporation provides for our board of directors to be divided into three classes, with staggered three-year terms. Only one class of directors is elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rights, our stockholders holding a majority of the shares of Common Stockcommon stock outstanding are able to elect all of our directors. Directors may be removed only with cause by the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote on such removal.

No Stockholder Action by Written Consent

Our amended and restated certificate of incorporation and our amended and restated bylaws provide that any action required or permitted to be taken by the holders of Common Stockcommon stock at an annual or special meeting of stockholders must be effected at a duly called meeting and may not be taken or effected by written consent of the stockholders.

Stockholder Meetings

Under our amended and restated certificate of incorporation and our amended and restated bylaws, only theour board of directors, acting pursuant to a resolution adopted by a majority of the directors then in office, may call a special meeting of the stockholders, and any business conducted at any special meeting will be limited to the purpose or purposes specified in the notice for such special meeting.

 

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Requirements for Advance Notification of Stockholder Nominations and Proposals

In order for our stockholders to bring nominations or business before an annual meeting properly, they must comply with certain notice requirements as provided by our amended and restated bylaws. Typically, in order for such notices to be timely, they must be provided to us not earlier than the close of business on the 120th day prior to the one-year anniversary of the preceding year’s annual meeting and not later than the close of business on the 90th day prior to the one-year anniversary of the preceding year’s annual meeting. For such notices to be timely in the event the annual meeting is advanced more than 30 days prior to or delayed by more than 70 days after the one-year anniversary of the preceding year’s annual meeting, notice must be provided to us not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or, if later, the 10th day following the day on which public announcement of the date of such meeting is first made.

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Amendment of Charter Provisions

The affirmative vote of the holders of at least 66-2/3% of the voting power of all of the then-outstanding shares of our voting stock, voting together as a single class, is required to, among other things, alter, amend or repeal certain provisions of our amended and restated certificate of incorporation, including those related to the classification of our board of directors, the amendment of our bylaws and certificate of incorporation, restrictions against stockholder actions by written consent, the designated parties entitled to call a special meeting of the stockholders and the indemnification of officers and directors.

Our amended and restated bylaws may only be amended (or new bylaws adopted) by theour board of directors or the affirmative vote of the holders of at least 66-2/3% of the voting power of all of the then-outstanding shares of our voting stock.

Transfer Agent and Registrar

The transfer agent and registrar for our Common Stockcommon stock is American Stock Transfer & Trust Company. Its address is 6201 15th Avenue, Brooklyn, New York 11219 and its telephone number is (800) 937-5449. The transfer agent for any series of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement for that series.

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DESCRIPTION OF DEBT SECURITIES

 

22We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indentures, we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.

We will issue the senior debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture. We will issue the subordinated debt securities under the subordinated indenture that we will enter into with the trustee named in the subordinated indenture. The indentures will be qualified under the Trust Indenture Act of 1939, as amended (the “TIA”). We use the term “debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable. We have filed forms of indentures as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.

The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.

General

We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:

the title;

the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;

any limit on the amount that may be issued;

whether or not we will issue the series of debt securities in global form, the terms and who the depositary will be;

the maturity date;

whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a U.S. person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;

the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;

whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;

the terms of the subordination of any series of subordinated debt;

the place where payments will be payable;

restrictions on transfer, sale or other assignment, if any;

our right, if any, to defer payment of interest and the maximum length of any such deferral period;

the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;

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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;

whether the indenture will restrict our ability and/or the ability of our subsidiaries to:

incur additional indebtedness;

issue additional securities;

create liens;

pay dividends and make distributions in respect of our capital stock and/or the capital stock of our subsidiaries;

redeem capital stock;

make investments or other restricted payments;

sell, transfer or otherwise dispose of assets;

enter into sale-leaseback transactions;

engage in transactions with stockholders and affiliates;

issue or sell stock of our subsidiaries; or

effect a consolidation or merger;

whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;

information describing any book-entry features;

provisions for a sinking fund purchase or other analogous fund, if any;

the applicability of the provisions in the indenture on discharge;

whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code;

the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;

the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;

any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable laws or regulations; and

any other terms which shall not be inconsistent with the indentures.

The notes may be issued as original issue discount securities. An original issue discount security is a note, including any zero coupon note, which:

is issued at a price lower than the amount payable upon its stated maturity; and

provides that upon redemption or acceleration of the maturity, an amount less than the amount payable upon the stated maturity, shall become due and payable.

U.S. federal income tax consequences applicable to notes sold at an original issue discount will be described in the applicable prospectus supplement. In addition, U.S. federal income tax or other consequences applicable to any notes which are denominated in a currency or currency unit other than U.S. dollars may be described in the applicable prospectus supplement.

Under the indentures, we will have the ability, in addition to the ability to issue notes with terms different from those of notes previously issued, without the consent of the holders, to reopen a previous issue of a series of notes and issue additional notes of that series, unless the reopening was restricted when the series was created, in an aggregate principal amount determined by us.

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Conversion or Exchange Rights

We will set forth in the prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.

Consolidation, Merger or Sale

Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquiror of such assets must assume all of our obligations under the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.

Events of Default Under the Indentures

Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indentures with respect to any series of debt securities that we may issue:

if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended or deferred;

if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable and the time for payment has not been extended or delayed;

if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the debenture trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series;

if specified events of bankruptcy, insolvency or reorganization occur; and

any other event of default described in the applicable prospectus supplement.

If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the second to last bullet point above, the debenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the debenture trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default results from the occurrence of a specified event of bankruptcy, insolvency or reorganization with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the debenture trustee or any holder.

The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any such waiver shall cure the default or event of default.

Subject to the terms of the applicable indenture, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with respect to the debt securities of that series, provided that:

the direction so given by the holders is not in conflict with any law or the applicable indenture; and

subject to its duties under the TIA, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.

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A holder of the debt securities of any series will have the right to institute a proceeding under an indenture or to appoint a receiver or trustee, or to seek other remedies only if:

the holder has given written notice to the debenture trustee of a continuing event of default with respect to that series;

the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and

the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 60 days after the notice, request and offer.

These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or accrued interest on, the debt securities.

We will periodically file statements with the debenture trustee regarding our compliance with specified covenants in the indentures.

Modification of Indenture; Waiver

We and the debenture trustee may change an indenture without the consent of any holders with respect to specific matters:

to fix any ambiguity, defect or inconsistency in the indenture;

to comply with the provisions described above under the heading “Description of Debt Securities—Consolidation, Merger or Sale;”

to comply with any requirements of the SEC in connection with the qualification of any indenture under the TIA;

to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in such indenture;

to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under the heading “Description of Debt Securities—General,” to establish the form of any certifications required to be furnished pursuant to the terms of an indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;

to evidence and provide for the acceptance of appointment hereunder by a successor trustee;

to provide for uncertificated debt securities in addition to or in place of certificated debt securities and to make all appropriate changes for such purpose;

to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default; or

to change anything that does not materially adversely affect the interests of any holder of debt securities of any series; provided that any amendment made solely to conform the provisions of the indenture to the corresponding description of the debt securities contained in the applicable prospectus or prospectus supplement shall be deemed not to adversely affect the interests of the holders of such debt securities.

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In addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the debenture trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:

extending the fixed maturity of the series of debt securities;

reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any debt securities;

reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver of the applicable indenture or notes or for waiver of compliance with certain provisions of the applicable indenture or for waiver of certain defaults;

changing any of our obligations to pay additional amounts;

reducing the amount of principal of an original issue discount security or any other note payable upon acceleration of the maturity thereof;

changing the currency in which any note or any premium or interest is payable;

impairing the right to enforce any payment on or with respect to any note;

adversely changing the right to convert or exchange, including decreasing the conversion rate or increasing the conversion price of, such note, if applicable;

in the case of the subordinated indenture, modifying the subordination provisions in a manner adverse to the holders of the subordinated notes;

if the notes are secured, changing the terms and conditions pursuant to which the notes are secured in a manner adverse to the holders of the secured notes;

reducing the requirements contained in the applicable indenture for quorum or voting;

changing any of our obligations to maintain an office or agency in the places and for the purposes required by the indentures; or

modifying any of the above provisions set forth in this paragraph.

Discharge

Each indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:

register the transfer or exchange of debt securities of the series;

replace stolen, lost or mutilated debt securities of the series;

maintain paying agencies;

hold monies for payment in trust;

recover excess money held by the debenture trustee;

compensate and indemnify the debenture trustee; and

appoint any successor trustee.

In order to exercise our rights to be discharged, we must deposit with the debenture trustee money or government obligations sufficient to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments are due.

Form, Exchange and Transfer

We will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company (“DTC”) or another depositary named by us and identified in a prospectus supplement with respect to that series. See the section entitled “Legal Ownership of Securities” for a further description of the terms relating to any book-entry securities.

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At the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.

Subject to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.

We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.

If we elect to redeem the debt securities of any series, we will not be required to:

issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or

register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.

Information Concerning the Debenture Trustee

The debenture trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given to it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.

Payment and Paying Agents

Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.

We will pay principal of, and any premium and interest on, the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.

All money we pay to a paying agent or the debenture trustee for the payment of the principal of, or any premium or interest on, any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.

Governing Law

The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the TIA is applicable.

Subordination of Subordinated Debt Securities

The subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue, nor does it limit us from issuing any other secured or unsecured debt.

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DESCRIPTION OF DEPOSITARY SHARES

General

We may, at our option, elect to offer fractional shares of preferred stock, which we call depositary shares, rather than full shares of preferred stock.  If we do, we will issue to the public receipts, called depositary receipts, for depositary shares, each of which will represent a fraction, to be described in the applicable prospectus supplement, of a share of a particular series of preferred stock.  Unless otherwise provided in the prospectus supplement, each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in a share of preferred stock represented by the depositary share, to all the rights and preferences of the preferred stock represented by the depositary share.  Those rights include dividend, voting, redemption, conversion and liquidation rights.

The shares of preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary under a deposit agreement between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend disbursing agent for the depositary shares.

The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Holders of depositary receipts agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.

The summary of terms of the depositary shares contained in this prospectus is not complete and is subject to, and is qualified in its entirety by, all provisions of the applicable deposit agreement, our certificate of incorporation and the certificate of designation for the applicable series of preferred stock that are, or will be, filed with the SEC.

Dividends and Other Distributions

The depositary will distribute all cash dividends or other cash distributions, if any, received in respect of the preferred stock underlying the depositary shares to the record holders of depositary shares in proportion to the numbers of depositary shares owned by those holders on the relevant record date.  The relevant record date for depositary shares will be the same date as the record date for the underlying preferred stock.

If there is a distribution other than in cash, the depositary will distribute property (including securities) received by it to the record holders of depositary shares, unless the depositary determines that it is not feasible to make the distribution.  If this occurs, the depositary may, with our approval, adopt another method for the distribution, including selling the property and distributing the net proceeds from the sale to the holders.

Liquidation Preference

If a series of preferred stock underlying the depositary shares has a liquidation preference, in the event of the voluntary or involuntary liquidation, dissolution or winding up of us, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.

Withdrawal of Stock

Unless the related depositary shares have been previously called for redemption, upon surrender of the depositary receipts at the office of the depositary, the holder of the depositary shares will be entitled to delivery, at the office of the depositary or upon his or her order, of the number of whole shares of the preferred stock and any money or other property represented by the depositary shares.  If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the depositary will deliver to the holder at the same time a new depositary receipt evidencing the excess number of depositary shares.  In no event will the depositary deliver fractional shares of preferred stock upon surrender of depositary receipts.  Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the deposit agreement or receive depositary receipts evidencing depositary shares therefor.

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Redemption of Depositary Shares

Whenever we redeem shares of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositary shares representing shares of the preferred stock so redeemed, so long as we have paid in full to the depositary the redemption price of the preferred stock to be redeemed plus an amount equal to any accumulated and unpaid dividends on the preferred stock to the date fixed for redemption.  The redemption price per depositary share will be equal to the redemption price and any other amounts per share payable on the preferred stock multiplied by the fraction of a share of preferred stock represented by one depositary share.  If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata or by any other equitable method as may be determined by the depositary.

After the date fixed for redemption, depositary shares called for redemption will no longer be deemed to be outstanding and all rights of the holders of depositary shares will cease, except the right to receive the monies payable upon redemption and any money or other property to which the holders of the depositary shares were entitled upon redemption upon surrender to the depositary of the depositary receipts evidencing the depositary shares.

Voting the Preferred Stock

Upon receipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts relating to that preferred stock.  The record date for the depositary receipts relating to the preferred stock will be the same date as the record date for the preferred stock. Each record holder of the depositary shares on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the number of shares of preferred stock represented by that holder’s depositary shares.  The depositary will endeavor, insofar as practicable, to vote the number of shares of preferred stock represented by the depositary shares in accordance with those instructions, and we will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary to do so.  The depositary will not vote any shares of preferred stock except to the extent it receives specific instructions from the holders of depositary shares representing that number of shares of preferred stock.

Charges of Depositary

We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements.  We will pay charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and such other charges (including those in connection with the receipt and distribution of dividends, the sale or exercise of rights, the withdrawal of the preferred stock and the transferring, splitting or grouping of depositary receipts) as are expressly provided in the deposit agreement to be for their accounts.  If these charges have not been paid by the holders of depositary receipts, the depositary may refuse to transfer depositary shares, withhold dividends and distributions and sell the depositary shares evidenced by the depositary receipt.

Amendment and Termination of the Deposit Agreement

The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement between us and the depositary.  However, any amendment that materially and adversely alters the rights of the holders of depositary shares, other than fee changes, will not be effective unless the amendment has been approved by the holders of a majority of the outstanding depositary shares.  The deposit agreement may be terminated by the depositary or us only if:

all outstanding depositary shares have been redeemed; or

there has been a final distribution of the preferred stock in connection with our dissolution and such distribution has been made to all the holders of depositary shares.

Resignation and Removal of Depositary

The depositary may resign at any time by delivering to us notice of its election to do so, and we may remove the depositary at any time. Any resignation or removal of the depositary will take effect upon our appointment of a successor depositary and its acceptance of such appointment.  The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having the requisite combined capital and surplus as set forth in the applicable agreement.

Notices

The depositary will forward to holders of depositary receipts all notices, reports and other communications, including proxy solicitation materials received from us, that are delivered to the depositary and that we are required to furnish to the holders of the preferred stock.  In addition, the depositary will make available for inspection by holders of depositary receipts at the principal office of the depositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depositary as the holder of preferred stock.

Limitation of Liability

Neither we nor the depositary will be liable if either we or it is prevented or delayed by law or any circumstance beyond its control in performing its obligations.  Our obligations and those of the depositary will be limited to performance in good faith of our and their duties thereunder.  We and the depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We and the depositary may rely upon written advice of counsel or accountants, on information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent to give such information and on documents believed to be genuine and to have been signed or presented by the proper party or parties.

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DESCRIPTION OF WARRANTS

We may issue warrants for the purchase of debt securities, common stock, preferred stock or other securities. Warrants may be issued independently or together with debt securities, common stock, preferred stock or other securities offered by any prospectus supplement and may be attached to or separate from any such offered securities.  Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent, all as will be set forth in the prospectus supplement relating to the particular issue of warrants.   The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants.  The summary of the terms of the warrants contained in this prospectus is not complete and is subject to, and is qualified in its entirety to, all provisions of the applicable warrant agreement.

Reference is made to the prospectus supplement relating to the particular issue of warrants offered pursuant to such prospectus supplement for the terms of and information relating to such warrants, including, where applicable:

the specific designation and aggregate number of, and the offering price at which we will issue, the warrants;

the currency or currency units in which the offering price, if any, and the exercise price are payable;

the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;

whether the warrants are to be sold separately or with other securities as parts of units;

whether the warrants will be issued in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit;

any applicable material U.S. federal income tax consequences;

the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;

the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;

the designation and terms of any equity securities purchasable upon exercise of the warrants;

the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased upon exercise of the warrants;

if applicable, the designation and terms of the debt securities, preferred stock, depositary shares or common stock with which the warrants are issued and the number of warrants issued with each security;

if applicable, the date from and after which any warrants issued as part of a unit and the related debt securities, preferred stock, depositary shares or common stock will be separately transferable;

the number of shares of preferred stock, the number of depositary shares or the number of shares of common stock purchasable upon exercise of a warrant and the price at which those shares may be purchased;

if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;

information with respect to book-entry procedures, if any;

the antidilution provisions of, and other provisions for changes to or adjustment in the exercise price of, the warrants, if any;

any redemption or call provisions; and

any additional terms of the warrants, including terms, procedures and limitations relating to the exchange or exercise of the warrants.

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DESCRIPTION OF PURCHASE CONTRACTS

We may issue, from time to time, purchase contracts, including contracts obligating holders to purchase from us and us to sell to the holders, a specified principal amount of debt securities, shares of common stock or preferred stock, or any of the other securities that we may sell under this prospectus at a future date or dates.  The consideration payable upon settlement of the purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by a specific reference to a formula set forth in the purchase contracts. The purchase contracts may be issued separately or as part of units consisting of a purchase contract and other securities or obligations issued by us or third parties, including United States treasury securities, securing the holders’ obligations to purchase the relevant securities under the purchase contracts. The purchase contracts may require us to make periodic payments to the holders of the purchase contracts or units or vice versa, and the payments may be unsecured or prefunded on some basis. The purchase contracts may require holders to secure their obligations under the purchase contracts. The summary of the terms of the purchase contracts contained in this prospectus is not complete and is subject to, and is qualified in its entirety by, all provisions of the applicable purchase contracts.

The prospectus supplement related to any particular purchase contracts will describe, among other things, the material terms of the purchase contracts and of the securities being sold pursuant to such purchase contracts, a discussion, if appropriate, of any special U.S. federal income tax considerations applicable to the purchase contracts and any material provisions governing the purchase contracts that differ from those described above. The description in the prospectus supplement will not necessarily be complete and will be qualified in its entirety by reference to the purchase contracts, and, if applicable, collateral arrangements and depositary arrangements, relating to the purchase contracts.

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DESCRIPTION OF UNITS

We may, from time to time, issue units comprised of one or more of the other securities that may be offered under this prospectus, in any combination. Each unit may also include debt obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time, or at any time before a specified date or other specific circumstances occur. The summary of the terms of the units contained in this prospectus is not complete and is subject to, and is qualified in its entirety by, all provisions of the applicable unit agreements.

Any prospectus supplement related to any particular units will describe, among other things:

the material terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;

any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;

if appropriate, any special U.S. federal income tax considerations applicable to the units; and

any material provisions of the governing unit agreement that differ from those described above.

The applicable provisions described in this section, as well as those described under “Description of Capital Stock,” “Description of Debt Securities,” “Description of Depositary Shares,” “Description of Warrants” and “Description of Purchase Contracts,” will apply to each unit and to each security included in each unit, respectively.

.

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PLAN OF DISTRIBUTION

We may sell the securities being offered hereby:

directly to purchasers;

through agents;

through dealers;

through underwriters;

through a combination of any of the above methods of sale; or

through any other methods described in a prospectus supplement.

We will identify the specific plan of distribution, including any direct purchasers, agents, dealers, underwriters and, if applicable, their compensation, the purchase price, the net proceeds to us, the public offering price, and any discounts or concessions allowed or reallowed or paid to dealers, in a prospectus supplement.

The distribution of securities may be effected, from time to time, in one or more transactions, including block transactions and transactions on the Nasdaq Stock Market or any other organized market where the securities may be traded.  The securities may be sold at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices.  The consideration may be cash or another form negotiated by the parties.  Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities.  That compensation may be in the form of discounts, concessions or commissions to be received from us or from the purchasers of the securities.

Offers to purchase the securities may be solicited directly by us or by agents designated by us from time to time.  We will, in the prospectus supplement relating to an offering, name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions we must pay.  Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.

If a dealer is utilized in the sale of the securities in respect of which this prospectus is delivered, we will sell the securities to the dealer, as principal.  The dealer, which may be deemed to be an underwriter as that term is defined in the Securities Act, may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.  Dealer trading may take place in certain of the securities, including securities not listed on any securities exchange.

If an underwriter or underwriters are utilized in the sale, we will execute an underwriting agreement with the underwriters at the time of sale to them and the names of the underwriters will be set forth in the applicable prospectus supplement, which will be used by the underwriters to make resales of the securities in respect of which this prospectus is delivered to the public.  The obligations of underwriters to purchase securities will be subject to certain conditions precedent and the underwriters will be obligated to purchase all of the securities of a series if any are purchased.

We may directly solicit offers to purchase the securities and we may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities.  To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used.

Underwriters, dealers, agents and other persons may be entitled, under agreements that may be entered into with us, to indemnification against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that they may be required to make in respect thereof.  Underwriters, dealers and agents may engage in transactions with, or perform services for, us in the ordinary course of business.

Any person participating in the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock.  These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock.

In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities.  Specifically, any underwriters may overallot in connection with the offering, creating a short position for their own accounts.  In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market.  Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise.  Any of these activities may stabilize or maintain the market price of the securities above independent market levels.  Any such underwriters are not required to engage in these activities and may end any of these activities at any time.

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LEGAL MATTERS

The

Unless otherwise stated in an accompanying prospectus supplement, the validity of the securities being offered by this prospectus will be passed upon for us by Paul HastingsPerkins Coie LLP, San Diego, California.Denver, Colorado. Counsel representing any underwriters, dealers or agents will be named in the applicable prospectus supplement.

EXPERTS

The audited consolidated financial statements incorporated by reference in this Prospectus by reference fromprospectus and elsewhere in the Company’s Annual Report on Form 10-K have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report (which report expresses an unqualified opinion on the consolidated financial statements and includes explanatory paragraphs referring to Gevo, Inc.’s going concern uncertainty and status as a development stage enterprise), which is incorporated herein by reference. Such consolidated financial statementsregistration statement have been so incorporated by reference in reliance upon the report of suchGrant Thornton LLP, independent registered public accountants, upon the authority of said firm given upon their authority as experts in accounting and auditing.

WHERE YOU CAN FIND ADDITIONALMORE INFORMATION

We file annual, quarterly and specialcurrent reports, proxy statements and other information with the SEC. Our SEC filings are available over the Internet at the SEC’s web site at www.sec.gov. You may also read and copy any document we file with the SEC at the SEC’stheir Public Reference Room located at 100 F Street, N.E., Washington, D.C. 20549. Please call theSEC at 1-800-SEC-0330 for moreYou may obtain information abouton the operation of the public reference room. ThePublic Reference Room by calling the SEC maintains an Internet website athttp://www.sec.govthat contains reports, proxy and information statements, and other information regarding issuers that file electronically 1-800-SEC-0330 for more information. Our filings with the SEC including Gevo, Inc. You mayare also accessavailable on our reports and proxy statements free of chargewebsite at our Internet website,http://www.gevo.com.

This prospectus The information on our website is part of a registration statement that we have filed with the SEC relating to the securities to be offered. This prospectus does not contain all of the information we have included in the registration statement and the accompanying exhibits and schedules in accordance with the rules and regulations of the SEC, and we refer you to the omitted information. The statements this prospectus makes pertaining to the content of any contract, agreement or other document that is an exhibit to the registration statement necessarily are summaries of their material provisions and do not describe all exceptions and qualifications contained in those contracts, agreements or documents. You should read those contracts, agreements or documents for information that may be important to you. The registration statement, exhibits and schedules are available at the SEC’s Public Reference Room or through its Internet website.

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

The rules of the SEC allow us to incorporateincorporated by reference in this prospectus or any prospectus supplement and you should not consider it a part of this prospectus or any accompanying prospectus supplement.

INFORMATION INCORPORATED BY REFERENCE

The SEC allows us to “incorporate by reference” the information in other documents that we file with it,them, which means that we can disclose important information to you by referring you to those documents that we have filed separately with the SEC. You should read thedocuments. The information incorporated by reference because it is an importantconsidered to be part of this prospectus.prospectus and any accompanying prospectus supplement, and later information filed with the SEC will automatically update and supersede this information. We hereby incorporate by reference the following information or documents into this prospectus:

our Annual Report on Form 10-K for the fiscal year ended December 31, 2013listed below and all documents subsequently filed with the SEC on April 15, 2014;

our Quarterly Report on Form 10-Q for the quarter ended March 31, 2014 filed with the SEC on May 14, 2014;

our Current Reports on Form 8-K filed with the SEC on May 15, 2014, May 23, 2014, June 5, 2014, June 12, 2014 and July 7, 2014; and

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the description of our Common Stock contained in our Registration Statement on Form S-1 (File No. 333-168792), filed with the SEC on August 12, 2010, including any subsequent amendment or report filed for the purpose of amending such description.

Any information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus or in a later filed document that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.

We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 ofForm 8-K and exhibits filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until we file a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold. Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by referenceprior to the extent that statementstermination of the offering under this prospectus and any prospectus supplement (other than information deemed furnished and not filed in the later filed document modify or replace such earlier statements.accordance with SEC rules, including Items 2.02 and 7.01 of Form 8-K):

Upon written or oral

Annual Report on Form 10-K for the fiscal year ended December 31, 2017 filed with the SEC on March 28, 2018;

Quarterly Reports on Form 10-Q for the quarters ended March 31, 2018 and June 30, 2018, filed with the SEC on May 10, 2018 and August 8, 2018, respectively;

Current Reports on Form 8-K filed with the SEC on January 3, 2018, January 5, 2018, January 10, 2018, February 13, 2018, February 22, 2018, May 31, 2018, June 4, 2018, June 20, 2018, June 25, 2018 and June 28, 2018; and

The description of our common stock contained in the registrant’s Registration Statement on Form 8-A filed with the SEC on February 4, 2011 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.

You may request we will provide to you, without charge, a copy of any or all of the documentsthese filings (other than an exhibit to a filing unless that are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits which areexhibit is specifically incorporated by reference into such documents. Requests should be directed to:that filing) at no cost, by writing to or telephoning us at the following address: Gevo, Inc., Attention: Investor Relations, 345 Inverness Drive South, Building C, Suite 310, Englewood, Colorado, 80112, telephone (303) 858-8358.

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GEVO, INC.

 

LOGO

Gevo, Inc.$300,000,000

17,534,279 Shares of

Common Stock

Preferred Stock

Debt Securities

Depositary Shares

Warrants

Purchase Contracts

Units

 

PROSPECTUS

                    , 2014

 

, 2018

 



PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 14.Other Expenses of Issuance and Distribution.

The following table sets forth the estimated costs and expenses payable by us in connection with the offeringissuance and distribution of the securities being registered.covered by this Registration Statement, other than underwriting discounts and commissions. All the amounts shownexpenses are estimates, except for the Securities and Exchange Commission (the “SEC”) registration fee.estimates.

 

SEC Registration Fee

  $1,965   $37,350 

Printing and Engraving Expenses

   25,000  

Printing Expenses

  * 

Legal Fees and Expenses

   75,000    * 

Accounting Fees and Expenses

   15,000    * 

Transfer Agent and Registrar Fees and Expenses

  * 

Trustee Fees and Expenses

  * 

Stock Exchange and Other Listing Fees

  * 

Miscellaneous

   5,000    * 

Total

  $121,965   $* 


*

These expenses are calculated in part based on the number of issuances and the amount of securities offered and accordingly cannot be estimated at this time.

Item 15.Indemnification of Directors and Officers.

Under Section 145 of the Delaware General Corporation Law (the “DGCL”), a corporation has the power to indemnify its directors and officers under certain prescribed circumstances and, subject to certain limitations, against certain costs and expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred in connection with any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, to which any of them is a party by reason of his or her being a director or officer of the corporation if it is determined that he or she acted in accordance with the applicable standard of conduct set forth in such statutory provision. In addition, a corporation may advance expenses incurred by a director or officer in defending a proceeding upon receipt of an undertaking from such person to repay any amount so advanced if it is ultimately determined that such person is not eligible for indemnification. OurThe registrant’s amended and restated certificate of incorporation provides that, pursuant to the DGCL, ourthe registrant’s directors shall not be liable for monetary damages to the fullest extent authorized under applicable law, including for breach of the directors’ fiduciary duty of care to usthe registrant and ourthe registrant’s stockholders. This provision in ourthe registrant’s amended and restated certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of the law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

Article 10 of ourthe registrant’s amended and restated bylaws provides that wethe registrant will indemnify, to the fullest extent authorized by the DGCL, each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of our company,the registrant, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith.

 

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In addition to the above, we havethe registrant has entered into indemnification agreements with each of ourits directors and officers. These indemnification agreements provide ourthe registrant’s directors and officers with the same indemnification and advancement of expenses as described above, and provide that ourthe registrant’s directors and officers will be indemnified to the fullest extent authorized by any future Delaware law that expands the permissible scope of indemnification. WeThe registrant also havehas directors’ and officers’ liability insurance, which provides coverage against certain liabilities that may be incurred by ourthe registrant’s directors and officers in their capacities as directors and officers of the Company.registrant.

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Item 16. 16.Exhibits.

The Exhibits to this registration statement are listed in the Exhibit Index on page II–7 and are incorporated by reference herein.

    

Incorporation By Reference

  

Exhibit Number

 

Description

 

Form

 

File No.

 

Filing Date

 

Exhibit

 

Filed Herewith

1.1#

 

Form of Underwriting Agreement.

         

 

3.1

 

Amended and Restated Certificate of Incorporation of Gevo, Inc.

 

10-K

 

001-35073

 

03/29/11

 

3.1

  

3.2

 

Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Gevo, Inc.

 

8-K

 

001-35073

 

06/10/13

 

3.1

  

3.3

 

Certificate of Amendment to Amended and Restated Certificate of Incorporation of Gevo, Inc.

 

8-K

 

001-35073

 

07/09/14

 

3.1

  

3.4

 

Certificate of Amendment to Amended and Restated Certificate of Incorporation of Gevo, Inc.

 

8-K

 

001-35073

 

04/22/15

 

3.1

  

3.5

 

Certificate of Amendment to Amended and Restated Certificate of Incorporation of Gevo, Inc.

 

8-K

 

001-35073

 

01/06/17

 

3.1

  

3.6

 

Certificate of Amendment to Amended and Restated Certificate of Incorporation of Gevo, Inc.

 

8-K

 

001-35073

 

06/04/18

 

3.1

  

3.7

 

Amended and Restated Bylaws of Gevo, Inc.

 

10-K

 

001-35073

 

03/29/11

 

3.1

  

4.1

 

Form of Gevo, Inc. Common Stock Certificate.

 

S-1

 

333-168792

 

01/19/11

 

4.1

  

4.2

 

Form of Senior Debt Indenture.

         

X

4.3

 

Form of Subordinated Debt Indenture.

         

X

4.4#

 

Form of Senior Note.

          

4.5#

 

Form of Subordinated Note.

          

4.6#

 

Form of Specimen Preferred Stock Certificate.

          

4.7#

 

Form of Certificate of Designation.

          

4.8#

 

Form of Deposit Agreement.

          

4.9#

 

Form of Warrant Agreement.

          

4.10#

 

Form of Purchase Contract.

          

4.11#

 

Form of Unit Agreement.

          

5.1

 

Opinion of Perkins Coie LLP.

         

X

12.1

 

Calculation of Ratio of Earnings to Fixed Charges.

         

X

23.1

 

Consent of Grant Thornton LLP.

         

X

23.2

 

Consent of Perkins Coie LLP (included in Exhibit 5.1).

         

X

24.1

 

Power of Attorney (included on signature page).

         

X

25.1†

 

Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Trustee for the Senior Debt Indenture.

          

25.1†

 

Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Trustee for the Subordinated Debt Indenture.

          

Item 17.


#

To be filed by amendment, as an exhibit to a Current Report on Form 8-K or by other applicable filing with the SEC to be incorporated by reference herein.

To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.

Item 17.

Undertakings.

(a)     The undersigned registrant hereby undertakes:

(1)     To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i)

(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, or SEC, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

II-2

(iii)

(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 the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the CommissionSEC 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.

(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 initialbona fideoffering thereof.

 

II-2


(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.

(5)

(4)     That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A (§ 230.430A of this chapter), shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.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 first use, 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 date of first use.purchaser:

(6)

(i)

Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

(ii)

Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act 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,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 sellersellers to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(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;

(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

(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)

(iv)

Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

II-3

(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 Sectionsection 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 Sectionsection 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 thesuch securities at that time shall be deemed to be the initialbona fideoffering thereof.

(h)

(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 CommissionSEC such indemnification is against public policy as expressed in the Securities Act of 1933 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,

II-3


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 of whether such indemnification by itthem is against public policy as expressed in the Securities Act of 1933 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.

 

II-4

II-4


SIGNATURES

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CountyCity of Douglas,Englewood, State of Colorado, on July 7, 2014.August 8, 2018.

 

GEVO, INC.

GEVO, INC.

By:

By:

/s/ Patrick R. Gruber

Patrick R. Gruber

Chief Executive Officer

(Principal Executive Officer)

POWER OF ATTORNEY

 

II-5


POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that eachEach person whose signature appears below hereby constitutes and appoints Patrick R. Gruber and Mike Willis,Geoffrey T. Williams, Jr., and each or any one of them acting individually, as his or her true and lawful attorney-in-factattorneys-in-fact and agent,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, to signexecute any and all amendments (including post-effective amendments) to this Registration Statement (including any post-effective amendments, and any new registration statement and to sign any and all additional registration statements relatingwith respect to the registration statement andoffering contemplated thereby filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended,Act), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,SEC, granting unto saidsuch 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 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 saidsuch attorneys-in-fact and agents, or any of them,his, her or their substitute or his or her substitutes, or substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

 

NAMESignature

 

TITLETitle

 

DATEDate

/s/ Patrick R. Gruber

 

Chief Executive Officer (Principaland Director

(Principal Executive Officer) and DirectorOfficer)

 July 7, 2014

August 8,2018

Patrick R. Gruber

  

/s/ Mike WillisBradford K. Towne

 

Chief FinancialAccounting Officer (Principal

(Principal Financial and Accounting Officer)Officer)

 July 7, 2014

August 8,2018

Mike Willis

Bradford K. Towne

  

/s/ Shai WeissRuth I. Dreessen

 Chairman

Chairperson of the Board of Directors

 July 7, 2014

August 8,2018

Shai Weiss

Ruth I. Dreessen

  

/s/ Carlos A. Cabrera

DirectorJuly 7, 2014
Carlos A. Cabrera  

/s/ Gary W. Mize

 

Director

 July 7, 2014

August 8,2018

Gary W. Mize

  

/s/ Bruce A Smith

 DirectorJuly 7, 2014
Bruce A. Smith  

/s/ Ganesh KishoreAndy Marsh

 

Director

 July 7, 2014

August 8,2018

Ganesh Kishore

Andy Marsh

  

/s/ Ruth I. DreessenJohannes Minho Roth

 

Director

 July 7, 2014

August 8,2018

Ruth I. Dreessen

Johannes Minho Roth

/s/ William H. Baum

Director

August 8,2018

William H. Baum

  

 

II-6


EXHIBIT INDEX

      Incorporated
by Reference
    

Exhibit
Number

  

Exhibit Description

  Form   Filing Date  Exhibit  Filed–
Furnished
Herewith
 
  4.1  Amended and Restated Certificate of Incorporation of Gevo, Inc.   10-K    March 29, 2011    3.1  
  4.2  Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Gevo, Inc.   8-K    June 10, 2013    3.1  
  4.3  Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Gevo, Inc.         *  
  4.4  Amended and Restated Bylaws of Gevo, Inc.   10-K    March 29, 2011    3.2  
  4.5  Form of Gevo, Inc. Common Stock Certificate   S-1    January 19, 2011    4.1  
  4.6  Exchange and Purchase Agreement, by and among Gevo, Inc., Gevo Development, LLC, Agri-Energy, LLC, WB Gevo, Ltd., Whitebox Advisors LLC, in its capacity as administrative agent, Whitebox Advisors LLC, in its capacity as representative, and the other parties thereto from time to time, dated May 9, 2014.   8-K    May 22, 2014    4.1  
  4.7  Registration Rights Agreement, by and among Gevo, Inc., WB Gevo, Ltd. and the other parties thereto from time to time, dated May 9, 2014.   8-K    May 15, 2014    4.2  
  4.8  Indenture, by and among Gevo, Inc., the Guarantors named therein and Wilmington Savings Fund Society, FSB, as trustee, dated June 6, 2014.   8-K    June 12, 2014    4.1  
  5.1  Opinion of Paul Hastings LLP         *  
10.1  Term Loan Agreement, by and among Gevo, Inc., as borrower, the other credit parties party thereto from time to time, the lenders party thereto from time to time and Whitebox Advisors, LLC, as administrative agent, dated May 9, 2014.   8-K    May 15, 2014  10.1  
23.1  Consent of Paul Hastings LLP (included in Exhibit 5.1)         *  
23.2  Consent of Independent Registered Public Accounting Firm, Deloitte & Touche LLP         *  
24.1  Power of Attorney (included on signature page)         *  

II-7