As filed with the Securities and Exchange Commission on
August 12, 2016September 29, 2023
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
REGISTRATION STATEMENT
THE SECURITIES ACT OF 1933
HC2 HOLDINGS, INC.
INNOVATE CORP.
(Exact name of registrant as specified in its charter)
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| | |
| Delaware | | 54-1708481 |
(State or other jurisdiction of
incorporation or organization) |
| (I.R.S. Employer
Identification Number) |
222 Lakeview Ave., Suite 1660
450 Park Avenue, 30th Floor
New York, New York 10022
(212) 235-2690
West Palm Beach, FL 33401
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Paul L. Robinson
K. Voigt
Chief LegalExecutive Officer and Corporate Secretary
450 Park Avenue, 30th Floor
New York, New York 10022
222 Lakeview Ave., Suite 1660
West Palm Beach, FL 33401
(212) 235-2690
235-2691
(
Address,Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Senet S. Bischoff,
Christopher R. Rodi, Esq.
Latham
Gregory W. Gribben, Esq.
Woods Oviatt Gilman LLP
1900 Bausch & Watkins LLP
885 Third Avenue
Lomb Place
Rochester, New York
New York 10022
(212) 906-1200APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: 14604
Telephone: (585) 987-2800
Facsimile: (585) 454-3968
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.statement
. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.o ☐ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.☒ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.o¨☐ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.o¨☐ If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective onupon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.o¨☐ If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.o¨☐ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filero | ¨☐ | Accelerated filer☒ | ☒ | |
Non-accelerated filero
(Do not check if a smaller
reporting company) | ¨☐ | Smaller reporting
o | ☒ | |
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered | Number of
Shares to be
registered | Proposed
maximum offering
price per share | Proposed
maximum aggregate
offering price | Amount of
registration fee |
Common Stock, par value $0.001 per share(1) | | 814,424 | | $ | 4.37 | | $ | 3,559,033 | | $ | 358.4(2 | ) |
| (1) | Includes 814,424 shares of common stock held by selling securityholders as of August 12, 2016. Pursuant to Rule 416 under the Securities Act of 1933, the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.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 the Securities Act.¨
| (2) | Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(a) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with Rule 457(c) of the Securities Act, the price shown is the average of the high and low prices for the Company’s common stock on August 12, 2016 as reported on the NYSE MKT LLC. |
The
registrantRegistrant hereby amends this
registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the
registrantRegistrant shall file a further amendment which specifically states that this registration statementRegistration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 (the "Securities Act"), as amended, or until the registration statementRegistration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. TheseThe securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor doesthese securities and it seekis not soliciting an offer to buy these securities in any jurisdictionstate where the offer or sale is not permitted.
Subject to Completion, dated
August 12, 2016September 29, 2023
PROSPECTUS
HC2 HOLDINGS, INC.
814,424 Shares of
INNOVATE CORP.
Common Stock
Offered by the Selling SecurityholdersThe selling securityholders identified herein
Preferred Stock
Depositary Shares
Warrants
Subscription Rights
Purchase Contracts
and
Purchase Units
We may offer, issue and sell, uptogether or separately:
•shares of our common stock;
•shares of our preferred stock, which may be issued in one or more series;
•depositary receipts, representing fractional shares of our preferred stock, which are called depositary shares;
•warrants to 814,424purchase shares in the aggregate of our common stock, par value $0.001 per share identified above, inshares of our preferred stock;
•subscription rights to purchase shares of our common stock, shares of our preferred stock;
•purchase contracts to purchase shares of our common stock, shares of our preferred stock; and
•purchase units, each case from timerepresenting ownership of a purchase contract, preferred securities, including U.S. treasury securities, or
•any combination of the foregoing, securing the holder’s obligation to timepurchase our common stock or other securities under the purchase contracts.
We will provide the specific prices and terms of these securities in one or more
offerings. This prospectus provides you with a general description of the securities. We will not receive any proceeds from the sale of our common stock sold by the selling securityholders.Each time any of the selling securityholders offer and sell securities, we and such selling securityholders will provide a supplementsupplements to this prospectus that contains specific information aboutat the offering and the selling securityholders, as well as the amounts, prices and termstime of the securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicableaccompanying prospectus supplement carefully before you invest in any of our securities.
The selling securityholdersmake your investment decision.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
We may offer
and sell shares of our common stock described in this prospectus and any prospectus supplement tosecurities through underwriting syndicates managed or
throughco-managed by one or more underwriters
or dealers,
andthrough agents or directly to
purchasers, or through a combinationpurchasers. These securities also may be resold by selling security holders. If required, the prospectus supplement for each offering of
these methods. If any underwriters, dealers or agents are involved insecurities will describe the
saleplan of
anydistribution for that offering. For general information about the distribution of
the securities
their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” andoffered, please see “Plan of Distribution”
for more information. No securities may be sold without delivery ofin this
prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE THE “RISK FACTORS” ON PAGE 5OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
prospectus.
Our common stock is listed on NYSE MKT LLCthe New York Stock Exchange under the trading symbol “HCHC.“VATE.” On August 12, 2016,Each prospectus supplement will indicate whether the last reported sale price ofsecurities offered thereby will be listed on any securities exchange.
Our business and investment in our
common stocksecurities involve significant risks. See “Risk Factors” on
NYSE MKT LLC was $4.38 per share.page 6 before you make your investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacydetermined if this prospectus or accuracy of this prospectus.any accompanying prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.The date of this prospectus is
, 2016.____________
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This prospectus is part of a registration statement
on Form S-3 that we filed with the
U.S. Securities and Exchange Commission
or the SEC,(the “SEC”) using a “shelf” registration process.
By using aUnder the shelf
registration statement,process, we may sell any combination of the
selling securityholders identified herein may, from time to time, sell up to 814,424 shares of common stock from time to timesecurities described in this prospectus in one or more
offerings as described in this prospectus.offerings. This prospectus only provides you with a general description of the securities that we may offer. Each time
that the selling securityholders offer andwe sell securities, we
and the selling securityholders will provide a
prospectus supplement to this prospectus that contains specific information about the
securities being offered and sold and the specific terms of that
offering.offering, including the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update or change information contained in this
prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the prospectus supplement. Before purchasing any securities, youprospectus. You should carefully read both this prospectus,
and the applicableany accompanying prospectus supplement
and any free writing prospectus prepared by or on behalf of us, together with the additional information described under the heading “Where You Can Find More
Information; Incorporation by Reference.Information.”
Neither we, nor the selling securityholders,
We have not authorized any other personanyone to provide you with different information. If anyone provides you with differentany information other than that contained in or inconsistentincorporated by reference into this prospectus, any accompanying prospectus supplement and any free writing prospectus prepared by or on behalf of us. We take no responsibility for, and can provide no assurance as to the reliability of, any other information you shouldthat others may give you. We are not rely on it. The selling securityholders will not make an offermaking offers to sell thesethe securities in any jurisdiction where thein which an offer or salesolicitation is not permitted. You should assume thatauthorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
The information
appearing in
this prospectus and the applicable prospectus supplement to this prospectus is accurate as of the date on
its respective cover, andthe front cover. You should not assume that
anythe information
incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates.When we refer to “HC2” “we,” “our,” “us” and the “Company”contained in this prospectus we mean HC2 Holdings, Inc.is accurate as of any other date.
When used in this prospectus, the terms “INNOVATE,” the “Company,” “we,” “our” and “us” refer to INNOVATE Corp. and its consolidated subsidiaries, unlessexcept otherwise specified. When we refer to “you,” we meanspecified or the holders of the applicable series of securities.context otherwise requires.
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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information with the
SEC. Information filed withSEC under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). Our SEC
by us can be inspected and copied at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies of this information by mail from the Public Reference Room of the SEC at prescribed rates. Further information on the operation of the SEC’s Public Reference Room in Washington, D.C. can be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov.Our web site address is www.hc2.com. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus.
This prospectus and any prospectus supplementfilings are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Other documents establishing the terms of the offered securities are or may be filed as exhibitsavailable to the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statementpublic at the SEC’s Public Reference Room in Washington, D.C. or through the SEC’s website as provided above.
Incorporation by Reference
at www.sec.gov.
The
SEC’s rules allowSEC allows us to “incorporate by reference” information into this prospectus
and any accompanying prospectus supplement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus and
subsequentany accompanying prospectus supplement, except for any information
that we file with the SEC will automatically update and supersede that information. Any statementsuperseded by information contained
directly in
a previouslythis prospectus, any accompanying prospectus supplement, any subsequently filed document
deemed incorporated by reference
will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus modifies or replaces that statement.We incorporate by reference our documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, which we refer to as the “Exchange Act” in this prospectus, between the date of this prospectus and the termination of the offering of the securities described in this prospectus. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed below or filed in the future, that are not deemed “filed” with the SEC, including our Compensation Committee report and performance graph or any information furnished pursuant to Items 2.02free writing prospectus prepared by or 7.01on behalf of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.
us. This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that we have previously been filed with the SEC:
SEC (other than information deemed furnished and not filed in accordance with SEC rules, including Items 2.02 and 7.01 of Form 8-K).Our
•our Annual Report on Form 10-K for the fiscal year ended December 31, 2015,2022, filed with the SEC on March 15, 2016.14, 2023;
Our Quarterly•the information specifically incorporated by reference into our Annual Report on Form 10-Q10-K for the quarterfiscal year ended MarchDecember 31, 2016, filed with the SEC on May 9, 2016.
Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, filed with the SEC on August 9, 2016.
Our Definitive Proxy Statement2022, from our definitive proxy statement on Schedule 14A, filed with the SEC on April 21, 2016.May 1, 2023;
Our•our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023 and June 30, 2023, filed with the SEC on May 10, 2023 and August 9, 2023;
•our Current Reports on Form 8-K, and Amended Current Reports on Form 8-K/A filed with the SEC on August 14, 2014, NovemberMarch 7, 2023, April 3, 2014, December 8, 2014, September 8, 2015, February 22, 2016, March 15, 2016,2023, April 14, 2016,25, 2023, May 9, 2016, May 18, 2016, May 25, 2016, May 26, 2016, June 3, 2016,2, 2023, June 15, 2016,2023, July 14, 2016,24, 2023, July 25, 2023, and September 21, 2016, August 1, 2016, August 9, 2016 and August 11, 2016.2023;
The•the description of our common stock and preferred stock contained in our registration statementRegistration Statements on Form 8-A, dated and filed with the SEC on December 23, 2014,May 11, 2017 and April 3, 2023, and any amendment or report filed with the SEC for the purpose of updating thesuch description.
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All reports and other documents we subsequently filefiled by us pursuant to SectionSections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering, including all such documents we may file with the SEC after the date of this prospectus and before the initial registration statement and prior to the effectivenesstermination of the registration statement, but excludingoffering also shall be deemed to be incorporated herein by reference. We are not, however, incorporating by reference any documents or portions thereof that are not deemed “filed” with the SEC, including any information furnished pursuant to rather than filed with, the SEC,Items 2.02 or 7.01 of Form 8-K.
If requested, we will
also be incorporated by reference into thisprovide to each person, including any beneficial owner, to whom a prospectus
and deemed to be part of this prospectus from the date of the filing of such reports and documents.You may requestis delivered, a free copy of any or all of the documents incorporated by reference in this prospectus (other than exhibits, unless they are specificallyinformation that has been incorporated by reference in the documents) by writing or telephoning us atprospectus but not delivered with the following address:
HC2 Holdings, Inc.
450 Park Avenue, 30th Floor
New York, New York 10022
(212) 235-2690
prospectus. Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in thisinto such documents. To obtain a copy of these filings at no cost, you may write or telephone us at the following address:
INNOVATE Corp.
222 Lakeview Avenue, Suite 1660
West Palm Beach, FL 33401
(212) 235-2691
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement.supplement and any documents incorporated by reference contain statements that are “forward-looking” within the meaning of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements can often be identified by the use of forward-looking language such as "if," "may," "should," "believe," "anticipate," "future," "forward," "potential," "estimate," "opportunity," "goal," "objective," "growth," "outcome," "could," "expect," "intend," "plan," "strategy," "provide," "commitment," "result," "seek," "pursue," "ongoing," "include" or in the negative of such terms or comparable terminology. Our actual results, performance or achievements could be materially different from the results expressed in, or implied by, forward-looking statements. Factors that could cause actual results, events and developments to differ include, without limitation: the ability of our subsidiaries (including, target businesses following their acquisition) to generate sufficient net income and cash flows to make upstream cash distributions, capital market conditions, our and our subsidiaries’ ability to identify any suitable future acquisition opportunities, efficiencies/cost avoidance, cost savings, income and margins, growth, economies of scale, combined operations, future economic performance, conditions to, and the timetable for, completing the integration of financial reporting of acquired or target businesses with us or the applicable subsidiary of us, completing future acquisitions and dispositions, litigation, potential and contingent liabilities, management’s plans, changes in regulations and taxes.
Forward-looking statements are subject to risks and uncertainties, including but not limited to the risks described in this prospectus, any accompanying prospectus supplement and any documents incorporated by reference, including the “Risk Factors” sections of this prospectus, any accompanying prospectus supplement and our reports and other documents filed with the SEC. When considering forward-looking statements, you should keep in mind the risks, uncertainties and other cautionary statements made in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference.
There can be no assurance that other factors not currently anticipated by us will not materially and adversely affect our business, financial condition and results of operations. These forward-looking statements inherently are not guarantees of performance and results, and you are cautioned not to place undue reliance on any forward-looking statements made by us or on our behalf. Please take into account that forward-looking statements speak only as of the date of this prospectus or, in the case of any accompanying prospectus supplement or documents incorporated by reference, the date of any such document. Except as required by applicable law, we do not undertake any obligation to publicly correct or update any forward-looking statement.
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We are a diversified holding company with sevenprincipal operations conducted through three operating platforms or reportable operating segments based on management’s organization of the enterprise—Manufacturing, Marine Services, Insurance, Utilities, Telecommunications,segments: Infrastructure, Life Sciences, Spectrum, and Other, which includes operationsbusinesses that do not meet the separately reportable segment thresholds. We expect
Infrastructure Segment (DBMG)
Our Infrastructure segment is comprised of DBM Global Inc. ("DBMG") and its wholly-owned subsidiaries. DBMG is a fully integrated industrial construction, structural steel and facility maintenance provider that provides fabrication and erection of structural steel and heavy steel plate services and also fabricates trusses and girders and specializes in the fabrication and erection of large-diameter water pipe and water storage tanks, as well as 3-D Building Information Modeling (“BIM”) and detailing. DBMG provides these services on commercial, industrial, and infrastructure construction projects such as high- and low-rise buildings and office complexes, hotels and casinos, convention centers, sports arenas and stadiums, shopping malls, hospitals, dams, bridges, mines, metal processing, refineries, pulp and paper mills and power plants. Through GrayWolf Industrial Inc. ("GrayWolf"), DBMG provides integrated solutions for digital engineering, modeling and detailing, construction, heavy equipment installation and facility services including maintenance, repair, and installation to continuea diverse range of end markets. Through Aitken Manufacturing, Inc., DBMG manufactures pollution control scrubbers, tunnel liners, pressure vessels, strainers, filters, separators and a variety of customized products. Through Banker Steel Holdco, LLC ("Banker Steel"), DBMG provides full-service fabricated structural steel and erection services primarily for the East Coast and Southeast commercial and industrial construction market, in addition to focus on acquiringfull design-assist services. The Company maintains an approximately 91% controlling interest in DBMG.
Life Sciences Segment (Pansend Life Sciences, LLC)
Our Life Sciences segment is comprised of Pansend Life Sciences, LLC ("Pansend"), its subsidiaries and investingequity method investments. Pansend maintains controlling interests of approximately 80% in Genovel Orthopedics, Inc. ("Genovel"), which seeks to develop products to treat early osteoarthritis of the knee and approximately 57% in R2 Technologies, Inc. ("R2"), which develops aesthetic and medical technologies for the skin. Pansend also invests in other early stage or developmental stage healthcare companies including an approximately 46% interest in MediBeacon Inc. ("MediBeacon"), a medical technology company specializing in the advances of fluorescent tracer agents and transdermal measurement, potentially enabling real-time, direct monitoring of kidney function, and an approximately 26% interest in Triple Ring Technologies, Inc. ("Triple Ring"), a science and technology co-development company.
Spectrum Segment (HC2 Broadcasting Holdings Inc.)
Our Spectrum segment is comprised of HC2 Broadcasting Holdings Inc. ("Broadcasting") and its subsidiaries. Broadcasting strategically acquired and operates over-the-air broadcasting stations across the United States. The Company maintains a 98% controlling interest in Broadcasting and maintains a controlling interest of approximately 77%, inclusive of approximately 10% proxy and voting rights from minority holders of DTV America Corporation ("DTV"). On a fully diluted basis, the Company would have an approximately 86% controlling interest in Broadcasting.
Other Segment
Our Other segment represents all other businesses
with attractive assetsor investments that
we consider to be undervalueddo not meet the definition of a segment individually or
fairly valuedin the aggregate. Included in the Other segment is TIC Holdco, Inc. ("TIC"), which is developing a multi-purpose cultural and
growing our acquired businesses.We filed our certificate of incorporation withperforming arts space in Palm Beach, Florida, the Secretary of State of Delaware on February 4, 1994.
former Marine Services segment, which includes its holding company, Global Marine Holdings, LLC ("GMH"), in which the Company maintains approximately 73% controlling interest. GMH's results include its subsidiary's prior 19% equity method investment in HMN International Co., Ltd., formerly known as Huawei Marine Networks Co. (“HMN”), until sold March 6, 2023.
Corporate Information
Our principal executive
offices areoffice is located at
450 Park222 Lakeview Avenue,
30th Floor, New York, New York, 10022,Suite 1660, West Palm Beach, Florida 33401, and our telephone number is (212)
235-2690.TABLE OF CONTENTS
RISK FACTORS
Investment235-2691. We maintain a website at https://INNOVATEcorp.com. The information on our website is not incorporated by reference in any securities offered pursuant to this prospectus and the applicableor any accompanying prospectus supplement, and you should not consider it a part of this prospectus or any accompanying prospectus supplement.
RISK FACTORS
Investing in our securities involves risks. You should carefully considerrisk. See the risk factors incorporated by reference todescribed in our most recent Annual Report on Form 10-K and(together with any subsequentmaterial changes thereto contained in subsequently filed Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after10-Q) and those contained in our other filings with the date ofSEC that are incorporated by reference in this prospectus and allany accompanying prospectus supplement. Before making an investment decision, you should carefully consider these risks as well as other information containedwe include or incorporatedincorporate by reference intoin this prospectus as updated byand any accompanying prospectus supplement. These risks could materially affect our subsequent filings underbusiness, financial condition or results of operations and cause the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement before acquiring anyvalue of such securities. The occurrence of any of these risks might cause youour securities to decline. You could lose all or part of your investment in the offered securities.investment.
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USE OF PROCEEDS
We will not receive
Except as otherwise set forth in any ofaccompanying prospectus supplement, we expect to use the net proceeds from the sale of securities for general corporate purposes, including the sharesfinancing of our operations, the possible repayment of indebtedness and possible business acquisitions. Unless set forth in an accompanying prospectus supplement, we will not receive any proceeds in the event that securities are sold by a selling security holder.
DESCRIPTION OF SECURITIES
This prospectus contains summary descriptions of the common stock,
preferred stock, depository shares, warrants, subscription rights, purchase contracts and purchase units that may be offered
by anyand sold from time to time. These summary descriptions are not meant to be complete descriptions of each security. However, at the time of an offering and sale, this prospectus together with the accompanying prospectus supplement will contain the material terms of the
selling securityholders.securities being offered. TABLE OF CONTENTS
DESCRIPTION OF CAPITAL STOCK
General
The following
summary description of our capital stock is
based on the provisions of the General Corporation Law of the State of Delaware (the “DGCL”), our Second Amended Certificate of Incorporation, as amended (the “Certificate of Incorporation”), the Fourth Amended and Restated By-Laws, as amended (the “By-Laws”), and the Tax Benefits Preservation Plan (the “Preservation Plan”), dated as of April 1, 2023. This description does not
purport to be complete and
may not contain all the information you should consider before investing in our capital stock. This description is
summarized from, and qualified in its entirety by reference to
the full text of the DGCL, as it may be amended from time to time, and to the terms of our
certificateCertificate of
incorporation,Incorporation, By-Laws, and Preservation Plan, as each may be amended from time to time, which
has been publicly filed withare incorporated by reference as exhibits to the
SEC.registration statement of which this prospectus is a part. See “Where You Can Find More
Information; Incorporation by Reference.Information.”
As used in this “Description of Capital Stock,” the terms “INNOVATE,” the “Company”, “we,” “our” and “us” refer to INNOVATE Corp., a Delaware corporation, and do not, unless otherwise specified, include our subsidiaries.
Our authorized capital stock consists
of:80,000,000of 160,000,000 shares of common stock, par value $0.001 par value;per share, and
20,000,000 shares of preferred stock, par value $0.001 par value.per share.
Voting.The holders of the common stock are entitled to one vote for each outstanding share of common stock owned by that stockholder on every matter properly submitted to the stockholders for their vote. Stockholders are not entitled to vote cumulatively for the election of directors.
Dividend Rights.Rights
.Subject to the dividend rights of the holders of any outstanding series of preferred stock, holders of the common stock are entitled to receive ratably such dividends and other distributions of cash or any other right or property as may be declared by the board of directors out of the assets or funds legally available for such dividends or distributions.
Liquidation Rights.Rights
.In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company’sour affairs, holders of the common stock would be entitled to share ratably in the assets that are legally available for distribution to stockholders after payment of liabilities and subject to the prior rights of any holders of preferred stock then outstanding. If the Company haswe have any preferred stock outstanding at such time, holders of the preferred stock may be entitled to distribution and/or liquidation preferences, such as those discussed below with respect to the preferred stock. In either such case, the Companywe must pay the applicable distribution to the holders of the preferred stock before theywe may pay distributions to the holders of the common stock.
Conversion, Redemption and Preemptive Rights.Rights
.Holders of the common stock have no conversion, redemption, preemptive, subscription or similar rights.Transfer Agent
The transfer agent and registrar for There are no sinking fund provisions applicable to our common stock is Broadridge Corporate Issuer Solutions, Inc.
stock.
Under our Certificate of Incorporation, the board of directors of the Company is authorized, subject to limitations prescribed by law and any consent rights granted to holders of outstanding shares of preferred stock, to issue up to 20,000,000 shares of preferred stock, par value $0.001 per share, in one or more classes or series. The board of directors has discretion to determine the rights, preferences, privileges and restrictions of, including, without limitation, dividend rights, conversion rights, redemption privileges and liquidation preferences of, and to fix the number of shares of, each series of the preferred stock. The terms and conditions of any issued preferred stock could have the effect of delaying, deferring or preventing a transaction or a change in control that might involve a premium price for holders of the common stock or otherwise be in their best interest. As of
Of the
date hereof, the board of directors has authorized and issued three series20,000,000 shares of preferred
stock: (i) 27,308stock authorized for issuance under our Certificate of Incorporation, 6,125 shares
ofare classified as Series
AA-3 Convertible Participating Preferred Stock
of the Company (the “Series
AA-3 Preferred Stock”)
(ii) 1,000and 10,000 shares
ofare classified as Series
A-1A-4 Convertible Participating Preferred Stock
of the Company (the “Series
A-1 Preferred Stock”) and (iii) 14,000 shares of Series A-2 Convertible Participating Preferred Stock of the Company (the “Series A-2A-4 Preferred Stock” and, together with the Series
A Preferred Stock and the Series A-1A-3 Preferred Stock, the “Preferred Stock”).
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On April 1, 2023, the Company entered into the Preservation Plan with Computershare Trust Company, N.A., as rights agent, and the Board of the Company declared a dividend distribution of one right (a “Right”) for each outstanding share of Common Stock of the Company to stockholders of record at the close of business on April 10, 2023. Each Right is governed by the terms of the Plan and entitles the registered holder to purchase from the Company a unit consisting of one one-thousandth of a share (a “Unit”) of Series AB Preferred Stock, par value $0.001 per share, at a purchase price of $15.00 per Unit, subject to adjustment (the “Purchase Price”). The Company previously entered into a Tax Benefits Preservation Plan on August 30, 2021 (the “Prior Plan”), in order to help protect the Company’s ability to use its tax net operating losses and certain other tax assets (“Tax Benefits”) by deterring an “ownership change” as defined under Section 382 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder (the “Code”). The Prior Plan expired pursuant to its terms on March 31, 2023. Accordingly, the Preservation Plan is intended to help continue to preserve the Tax Benefits.
Series
A-1A-3 and Series A-4 Preferred Stock
and Series A-2 Preferred StockThe Company
We originally designated
the Series A Preferred Stock pursuant to a Certificate of Designation of Series A Convertible Participating Preferred Stock adopted on May 29, 2014 (the “Series A Certificate”).
In connection with the issuance of the Series A-1 Preferred Stock onOn September 22, 2014,
the Company adopted the Certificate of Designation of Series A-1 Convertible Participating Preferred Stock (the “Series A-1 Certificate”) and alsowe amended and restated the Series A Certificate. In connection with the issuance of the Series A-2 Preferred Stock on January 5, 2015,
the Companywe adopted the Certificate of Designation of Series A-2 Convertible Participating Preferred Stock (the “Series A-2 Certificate”) and also amended and restated the Series A
Certificate and the Series A-1 Certificate. On August 10, 2015,
the Companywe adopted certain Certificates of Correction of the Certificates of Amendment to the Certificates of Designation of the Series A Certificate
the Series A-1 Certificate and the Series A-2
Certificate, and on June 24, 2016 the Company adopted certain amendments to the Series A-1 Certificate of Designation.Certificate. The Series A
Certificate, the Series A-1 Certificate and the Series A-2 Certificate together, as amended, are referred to as the “Certificates of Designation.”
On May 29, 2021, pursuant to the Certificate of Designation, holders of the Series A and A-2 Preferred Stock caused the Company to redeem the Series A and A-2 Preferred Stock at the accrued value per share plus accrued but unpaid dividends (to the extent not included in the accrued value of Series A and A-2 Preferred Stock), of which $10.4 million was paid in cash to holders of the Series A and A-2 Preferred Stock. Each share of Series A and A-2 Preferred Stock that was not so redeemed was automatically converted into shares of common stock at the conversion price then in effect, of which 50,410 shares of the Company's common stock were issued in lieu of cash to holders of the Series A Preferred Stock. In connection with the Stock Purchase Agreement, Continental Insurance Group ("CIG"), formerly a wholly owned subsidiary of the Company, entered into a letter agreement with the Company to not redeem at maturity or seek redemption of 6,125 shares of the Company's Series A and 10,000 shares of the Company's Series A-2 Preferred Stock.
On July 1, 2021 (the "Exchange Date") as a part of the sale of CIG, INNOVATE entered into an exchange agreement (the "Exchange Agreement") with Continental General Insurance Company ("CGIC"), also a former subsidiary, which held the remaining shares of the Series A and Series A-2 Preferred Stock and was eliminated in consolidation prior to the sale of the Company’s former Insurance segment on July 1, 2021. Per the Exchange Agreement, the Company exchanged 6,125 shares of the Series A and 10,000 shares of the Series A-2 shares that CGIC held for an equivalent number of Series A-3 Convertible Participating Preferred Stock ("Series A-3") and Series A-4 Convertible Participating Preferred Stock ("Series A-4"), respectively. The terms remained substantially the same, except that the Series A-3 and Series A-4 will mature on July 1, 2026. A cash payment of $0.3 million was made as a part of the exchange for accrued and unpaid dividends on the Series A and Series A-2 being exchanged.
Upon issuance of the Series A-3 and Series A-4 Preferred Stock on July 1, 2021, the Series A-3 and Series A-4 have been classified as temporary equity in the Company's Condensed Consolidated Balance Sheet with a combined redemption value of $16.1 million with a current fair value as of June 30, 2023 of $17.0 million.
The following summary of the terms of the Preferred Stock is qualified in its entirety by the complete terms of the Certificates of Designation.
Dividends. The Series A-3 and Series A-4 Preferred Stock will accrue a cumulative quarterly cash dividend at an annualized rate of 7.50%. The accrued valuevalues of the Series A-3 and Series A-4 Preferred Stock will accrete quarterly at an annualized rate of 4.00% that will beis reduced to 2.00% or 0.00%0.0% if the Company achieves specified rates of growth measured by increases in its net asset value; provided, that the accreting dividend rate will be 7.25% in the event that (i)(A) the daily volume weighted average price (“VWAP”("VWAP") of the Common StockCompany's common stock is less than a certain threshold amount, (ii)(B) the Common StockCompany's common stock is not registered under Section 12(b) of the Securities
Exchange Act of 1934, as amended,
(iii) following May 29, 2015,(C) the
Common StockCompany's common stock is not listed on certain national securities exchanges or
(iv) the Company is delinquent in the payment of any cash dividends. The
Series A-3 and Series A-4 Preferred Stock is also entitled to participate in cash and in-kind distributions to holders of shares of
Common StockCompany's common stock on an as-converted basis.
Subsequent Measurement. The Company has elected to account for the Series A-3 and Series A-4 Preferred Stock by immediately recognizing changes in the redemption value as they occur. The carrying value of the Series A-3 and Series A-4 Preferred Stock are adjusted to equal what the redemption amount would be as if the redemption were to occur at the end of the reporting period as if it were also the redemption date for the Series A-3 and Series A-4 Preferred Stock. Any cash dividends paid directly reduce the carrying value of the Series A-3 and Series A-4 Preferred Stock until the carrying value equals the redemption value. The Company has a history of paying dividends on its preferred stock and expects to continue to pay such dividends each quarter.
Optional Conversion. Each share of Preferred StockSeries A-3 and Series A-4 may be converted by the holder into Common Stockshares of the Company's common stock at any time based on the then applicable conversion price. Pursuant to the Series A-1 Certificate, eachthen-applicable Conversion Price. Each share of Series A-1 Preferred StockA-3 is initially convertible at a conversion price of $4.25. Pursuant$4.25 (as it may be adjusted from time to time, the Series A-2 Certificate,"Series A-3 Conversion Price"), and each share of Series A-2 Preferred StockA-4 is initially convertible at a conversion price of $8.25. Pursuant$8.25 (as it may be adjusted from time to time, the Series A Certificate, each share of Series A Preferred Stock is initially convertible at a conversion price of $4.25. Such conversion prices"Series A-4 Conversion Price") (“collectively the “Conversion Prices”). The Conversion Prices are subject to adjustment for dividends, certain distributions, stock splits, combinations, reclassifications, reorganizations, mergers, recapitalizations and similar events, as well as in connection with issuances of equity or equity-linked or other comparable securities by the Company at a price per share (or with a conversion or exercise price or effective issue price) that is below the applicable conversion priceConversion Prices’ (which adjustment shall be made on a weighted average basis). Actual conversion prices at the time of the exchange were $3.52 for the Series A and $5.33 for the Series A-2.
Redemption by the Holders / Automatic Conversion. On May 29, 2021,July 1, 2026, holders of the Preferred StockSeries A-3 and Series A-4 shall be entitled to cause the Company to redeem the Preferred StockSeries A-3 and Series A-4 at the accrued value per share plus accrued but unpaid dividends (to the extent not included in the accrued value of Preferred Stock)Series A-3 and Series A-4). Each share of Preferred StockSeries A-3 and Series A-4 that is not so redeemed will be automatically converted into shares of Common Stockthe Company's common stock at the conversion priceConversion Price then in effect.
Upon a change of control (as defined in
the Certificateseach Certificate of Designation) holders of the
Preferred StockSeries A-3 and Series A-4 shall be entitled to cause the Company to redeem their
Preferred Stockshares of Series A-3 and Series A-4 at a price per share of
Preferred StockSeries A-3 and Series A-4 equal to the greater of (i) the accrued value of the
Preferred Stock, which amount would be multiplied by 150% in the event of a change of control occurring on or prior to May 29, 2017,Series A-3 and Series A-4, plus any accrued and unpaid dividends (to the extent not included in the accrued value of
Series A-3 and Series A-4 Preferred Stock), and (ii) the value that would be received if the share of
Preferred StockSeries A-3 and Series A-4 were converted into
Common Stockshares of the Company's common stock immediately prior to the change of control.
Redemption by the Company/Company Call Option. At any time after the third anniversary of the Original Issue Date, May 29, 2017,2014, the Company may redeem the Preferred Stock,Series A-3/Series A-4, in whole but not in part, at a price per share generally equal to 150% of the accrued value per share, plus accrued but unpaid dividends (to the extent not included in the accrued value of Preferred Stock)the Series A-3/Series A-4), subject to the holder’sholder's right to convert prior to such redemption.
Forced Conversion. After May 29, 2017, theThe Company may force conversion of the Preferred StockSeries A-3 and Series A-4 into Common Stockshares of the Company's common stock if the Common Stock’scommon stock's thirty-day VWAP exceeds 150% of the then-applicable Conversion Price and the Common Stock’s daily VWAP exceeds 150% of the then applicablethen-applicable Conversion Price for at least twenty trading TABLE OF CONTENTS
days out of the thirty trading day period used to calculate the thirty-day VWAP. In the event of a forced conversion, the holders of Preferred StockSeries A-3 and Series A-4 will have the ability to elect cash settlement in lieu of conversion if certain market liquidity thresholds for the Common StockCompany's common stock are not achieved.
Liquidation Preference. The Series A Preferred Stock ranks at parity with the Series A-1 Preferred Stock and the Series A-2 Preferred Stock. In the event of any liquidation, dissolution or winding up of the Company (any such event, a “Liquidation Event”), the holders of Preferred StockSeries A-3 and Series A-4 will be entitled to receive per share the greater of (i) the accrued value of the Preferred Stock, which amount would be multiplied by 150% in the event of a Liquidation Event occurring on or prior to May 29, 2017,Series A-3 and Series A-4, plus any accrued and unpaid dividends (to the extent not included in the accrued value of Preferred Stock)Series A-3 and Series A-4), and (ii) the value that would be received if the share of Preferred StockSeries A-3 and Series A-4 were converted into Common Stockshares of the Company's common stock immediately prior to such occurrence. The Preferred StockSeries A-3 and Series A-4 will rank junior to any existing or future indebtedness but senior to the Common StockCompany's common stock and any future equity securities other than any future senior or pari passu preferred stock issued in compliance with the Certificateseach Certificate of Designation. The Series A-3 Preferred Stock and the Series A-4 Preferred Stock rank at parity.
Voting Rights. Except as required by applicable law, the holders of the shares of each series of Preferred Stockthe Series A-3 and Series A-4 will be entitled to vote on an as-converted basis with the holders of the other series ofSeries A-3 Preferred Stock and the Series A-4 Preferred Stock (on an as-converted basis), as applicable, and the holders of the Company’s Common Stockcommon stock on all matters submitted to a vote of the holders of Common Stock. Certain series of Preferred Stock will be entitled to votethe Company's common stock with the holders of certain other series ofSeries A-3 Preferred Stock and Series A-4 Preferred Stock on certain matters, and separately as a class on certain limited matters. Subject to maintenance of certain ownership thresholds by the initial purchasers of the Series A Preferred Stock and the initial purchasers of the Series A-1 Preferred Stock (collectively, the “Series A and Series A-1 Preferred Purchasers”), the holders of the shares of Preferred Stock will also have the right to vote shares of Preferred Stock as a separate class for at least one director, as discussed below under “— Board Rights.”
Consent Rights. For so long as any of the Preferred StockSeries A-3 and Series A-4 is outstanding, consent of the holders of shares representing at least 75% of certain of the Preferred StockSeries A-3 and Series A-4 then outstanding is required for certain material actions.Board Rights. For so long as the Series A and Series A-1 Preferred Purchasers own at least a 15% interest in the Company on an as-converted basis and at least 80% of the shares of Preferred Stock issued to the Series A and Series A-1 Preferred Purchasers on an as-converted basis, the Series A and Series A-1 Preferred Purchasers will have the right to appoint and elect (voting as a separate class) a percentage of the board of directors of the Company that is no more than 5% less than the Series A and Series A-1 Preferred Purchasers’ as-converted equity percentage of the Common Stock (but no fewer than one director). One such elected director (as designated by the holders of shares representing at least 75% of the Preferred Stock then outstanding) shall be entitled to be a member of each committee of the board of directors of the Company, provided, that such director membership on any such committee will be dependent upon such director meeting the qualification, and if applicable, independence criteria deemed necessary to so comply in accordance with any listing requirements of the exchanges on which the Company’s capital stock is then listed. For so long as the Director Election Condition is satisfied, if a specified breach event shall occur with respect to the Preferred Stock (defined for such purposes to include the failure to timely pay required dividends for two or more consecutive quarters or the occurrence and continuation of certain breaches of covenants contained in the Certificates of Designation), the holders of the Preferred Stock shall be entitled to appoint the number of additional directors to the board of directors of the Company that will cause a majority of the board of directors to be comprised of directors appointed by the holders of the Preferred Stock and independent directors until the cure of such specified breach event.
Participation Rights. Pursuant to the securities purchase agreements entered into with the initial purchasers of the Series A Preferred Stock, the Series A-1A-3 Preferred Stock and the Series A-2A-4 Preferred Stock, subject to meeting certain ownership thresholds, certain initial purchasers of the Series A Preferred Stock, the Series A-1A-3 Preferred Stock and the Series A-2A-4 Preferred Stock will beare entitled to participate, on a pro ratapro-rata basis in accordance with their ownership percentage, determined on an as-converted basis, in issuances of equity and equity linked securities by the Company. In addition, subject to meeting certain ownership thresholds, certain initial purchasers of the Series A Preferred Stock, the Series A-1A-3 Preferred Stock and the Series A-2A-4 Preferred Stock will be entitled to participate in issuances of preferred securities and in debt transactions of the Company.Dividend
We do not pay regular dividends to holders
As of
ourJune 30, 2023, Series A-3 Preferred Stock and Series A-4 Preferred Stock were convertible into 1,740,700 and 1,875,533 shares, respectively, of INNOVATE's common stock.
However, we have paid several special cash dividends to holders of our common stock. We have not paid any special dividends to holders of our common stock since August 27, 2013. TABLE OF CONTENTS
Subject to the dividend rights of the holders of any outstanding series of preferred stock, holders of the Common Stock are entitled to receive ratably such dividends and other distributions of cash or any other right or property as may be declared by the board of directors out of the assets or funds legally available for such dividends or distributions. Any future determinations to pay cash dividends on our common stock will be at the discretion of our board of directors and will depend upon our financial condition, results of operations, cash flows and other factors that the board of directors deem relevant.
Anti-Takeover Effects of Delaware Law
TheProvisions of the Certificate of Incorporation, Bylaws and Other Agreements
Our certificate of incorporation expressly provides that the Company shall not be governed by Section 203 of the DGCL, which would have otherwise imposed additional requirements regarding mergers and other business combinations.
Our common stock is listed on the New York Stock Exchange under the symbol “VATE.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
DESCRIPTION OF DEPOSITARY SHARES
GLOBAL SECURITIES
Book-Entry, DeliveryWe may offer depositary receipts representing fractional shares of our preferred stock, rather than full shares of preferred stock. The shares of preferred stock represented by depositary shares will be deposited under a depositary agreement between us and Form
Unless we indicate differentlya bank or trust company that meets certain requirements and is selected by us (the “Bank Depositary”). Each owner of a depositary share will be entitled to all the rights and preferences of the preferred stock represented by the depositary share.
The description in aan accompanying prospectus supplement of any depositary shares we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable depositary agreement, which will be filed with the SEC if we offer depositary shares. For more information on how you can obtain copies of any depositary agreement if we offer depositary shares, see “Where You Can Find More Information.” We urge you to read the applicable depositary agreement and any accompanying prospectus supplement in their entirety.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock represented by depositary shares, the Bank Depositary will distribute such dividends to the record holders of such depositary shares. If the distributions are in property other than cash, the Bank Depositary will distribute the property to the record holders of the depositary shares. However, if the Bank Depositary determines that it is not feasible to make the distribution of property, the Bank Depositary may, with our approval, sell such property and distribute the net proceeds from such sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the Bank Depositary will redeem the depositary shares from the proceeds received by the Bank Depositary in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as the Bank Depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the Bank Depositary will mail the notice to the record holders of the depositary shares relating to such preferred stock. Each record holder of these depositary shares on the record date, which will be the same date as the record date for the preferred stock, may instruct the Bank Depositary as to how to vote the preferred stock represented by such holder’s depositary shares. The Bank Depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and we will take all action that the Bank Depositary deems necessary in order to enable the Bank Depositary to do so. The Bank Depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may be amended by agreement between the Bank Depositary and us. However, any amendment that materially and adversely alters the rights of the holders of depositary shares will not be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. The depositary agreement may be terminated by the Bank Depositary or us only if (1) all outstanding depositary shares have been redeemed or (2) there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of our company and such distribution has been distributed to the holders of depositary receipts.
Withdrawal of Preferred Stock
Except as may be provided otherwise in an accompanying prospectus supplement, upon surrender of depositary receipts at the principal office of the Bank Depositary, subject to the terms of the depositary agreement, the owner of the depositary shares may demand delivery of the number of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Partial shares of preferred stock will not be issued. 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 Bank Depositary will deliver to such holder at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of withdrawn preferred stock may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares therefor.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares of our common stock or shares of preferred stock. We may issue warrants independently or together with other securities, initiallyand they may be attached to or separate from the other securities. Each series of warrants will be issued under a separate warrant agreement that we will enter into with a bank or trust company, as warrant agent, as detailed in book-entry forman accompanying prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and represented by onewill not assume any obligation, or more global securities. agency or trust relationship, with you.
The globalprospectus supplement relating to a particular issue of warrants will describe the terms of those warrants, including, when applicable:
•the offering price;
•the currency or currencies, including composite currencies, in which the purchase price and/or exercise price of the warrants may be payable;
•the number of warrants offered;
•the exercise price and the amount of securities you will receive upon exercise;
•the procedure for exercise of the warrants and the circumstances, if any, that will cause the warrants to be deposited with, orautomatically exercised;
•the rights, if any, we have to redeem the warrants;
•the date on behalf of, The Depository Trust Company, New York, New York, as depositary, or DTC,which the right to exercise the warrants will commence and registered in the date on which the warrants will expire;
•the name of Cede & Co., the nomineewarrant agent; and
•any other material terms of DTC. Unlessthe warrants.
After warrants expire they will become void. The prospectus supplement may provide for the adjustment of the exercise price of the warrants.
Warrants may be exercised at the appropriate office of the warrant agent or any other office indicated in an accompanying prospectus supplement. Before the exercise of warrants, holders will not have any of the rights of holders of the securities purchasable upon exercise and until it is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security maywill not be transferred except as a wholeentitled to payments made to holders of those securities.
The description in an accompanying prospectus supplement of any warrants we offer will not necessarily be complete and will be qualified in its entirety by
the depositary to its nominee or by the nomineereference to the
depositary, or byapplicable warrant agreement, which will be filed with the
depositary or its nomineeSEC if we offer warrants. For more information on how you can obtain copies of any warrant agreement if we offer warrants, see “Where You Can Find More Information.” We urge you to
a successor depositary or to a nominee ofread the
successor depositary.DTC has advised us that it is:
applicable warrant agreement and any accompanying prospectus supplement in their entirety. a limited-purpose trust company organized under the New York Banking Law;
a “banking organization” within the meaningDESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase shares of the New York Banking Law;
a memberour common stock, or shares of the Federal Reserve System;
a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and
a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants depositour preferred stock. We may issue subscription rights independently or together with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations andany other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser of aoffered security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be transferable by the beneficial owners. stockholder. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The
participants are responsible for keeping account of their holdings on behalf of their customers.So long asprospectus supplement relating to any subscription rights we may offer will contain the securities are in book-entry form, you will receive payments and may transfer securities only through the facilitiesspecific terms of the depositary and its direct and indirect participants. We will maintain an office or agency insubscription rights. These terms may include the location specified in following:
•the prospectus supplementprice, if any, for the applicable securities, where noticessubscription rights;
•the number and demands in respectterms of each share of common stock or preferred stock which may be purchased per each subscription right;
•the exercise price payable for each share of common stock or preferred stock upon the exercise of the securities may be deliveredsubscription rights;
•the extent to us and where certificated securities may be surrenderedwhich the subscription rights are transferable;
•any provisions for
payment, registration of transfer or exchange. TABLE OF CONTENTS
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than alladjustment of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot thenumber or amount of securities receivable upon exercise of the interestsubscription rights or the exercise price of each direct participant in the securitiessubscription rights;
•any other terms of
such seriesthe subscription rights, including the terms, procedures and limitations relating to
be redeemed.Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or votethe exchange and exercise of the subscription rights;
•the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire;
•the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and
•if applicable, the securities. Undermaterial terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights.
The description in an accompanying prospectus supplement of any subscription rights we offer will not necessarily be complete and will be qualified in its
usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified in a listing attached to the omnibus proxy.So long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities,entirety by wire transfer of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writingreference to the applicable trusteesubscription rights certificate or other designated party at least 15 days beforesubscription rights agreement, which will be filed with the SEC if we offer subscription rights. For more information on how you can obtain copies of any subscription rights certificate or subscription rights agreement if we offer subscription rights, see “Where You Can Find More Information.” We urge you to read the applicable payment date bysubscription rights certificate, the persons entitledapplicable subscription rights agreement and any accompanying prospectus supplement in their entirety.
DESCRIPTION OF PURCHASE CONTRACTS AND PURCHASE UNITS
We may issue purchase contracts, including contracts obligating holders to
payment, unless a shorter period is satisfactorypurchase from us, and obligating us to sell to the
applicable trustee or other designated party.Redemption proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event thatholders, a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However, if:
DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be;
we determine, in our sole discretion, not to have such securities represented by one or more global securities; or
an Event of Default has occurred and is continuing with respect to such series of securities.
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We will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
We have obtained the information in this section and elsewhere in this prospectus concerning DTC
and DTC’s book-entry system from sources that are believed to be reliable, but we take no
responsibility for the accuracy of this information.
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SELLING SECURITYHOLDERS
The table below sets forth certain information regarding the beneficial ownership of our common stock as of August 12, 2016 by the selling securityholders. The selling securityholders may sell all, some or none of the existing shares of common stock they hold, and therefore we cannot estimate at this time the aggregatespecified number of shares the selling securityholders identified below may offer pursuant to future prospectuses or prospectus supplements or the aggregate number of shares of common stock the selling securityholders may own after completion of any such offering.
The percentages in the table below reflect beneficial ownership as determined in accordance with Rule 13d-3 under the Exchange Act and are based on 35,436,527 shares of our common stock, outstanding asshares of August 12, 2016.
Information in the table below, with respectour preferred stock or at a future date or dates, which we refer to beneficial ownership, has been furnished by the selling securityholders. The selling securityholders originally acquired the common stock of the Company they hold and that are included in this prospectus pursuant to a private transaction in 2016 conducted according to exemptions from the Securities Act. Unless otherwise indicated, based on the information supplied to us by or on behalf of the selling securityholders, no selling securityholder is a broker-dealer or an affiliate of a broker-dealer.
To our knowledge, each person named in the table below has sole voting and investment power with respect to allas purchase contracts. The price of the securities shown as beneficially ownedand the number of securities may be fixed at the time the purchase contracts are issued or may be determined by such person, except as otherwisereference to a specific formula set forth in the notespurchase contracts, and may be subject to adjustment under anti-dilution formulas. The purchase contracts may be issued separately or as part of units consisting of a stock purchase contract and our preferred securities of third parties, including U.S. treasury securities, or any combination of the foregoing, securing the holders’ obligations to purchase the securities under the purchase contracts, which we refer to herein as purchase units. The purchase contracts may require holders to secure their obligations under the purchase contracts in a specified manner. The purchase contracts also may require us to make periodic payments to the table. The number of securities shown represents the number of securities the person “beneficially owns,” as determined by the rulesholders of the SEC. purchase contracts or the purchase units, as the case may be, or vice versa, and those payments may be unsecured or pre-funded in whole or in part.
The SEC has defined “beneficial” ownership of a security to mean the possession, directly or indirectly, of voting power and/or investment power. A security holder is also deemed to be, asdescription in an accompanying prospectus supplement of any date,purchase contract or purchase unit we offer will not necessarily be complete and will be qualified in its entirety by reference to the beneficial owner of all securities that such security holder hasapplicable purchase contract or purchase unit, which will be filed with the right to acquire within 60 days after that date through (1) the exerciseSEC if we offer purchase contracts or purchase units. For more information on how you can obtain copies of any option, warrantpurchase contract or right, (2)purchase unit we may offer, see “Where You Can Find More Information.” We urge you to read the conversion ofapplicable purchase contract or applicable purchase unit and any accompanying prospectus supplement in their entirety.
SELLING SECURITYHOLDERS
Information about selling security holders, where applicable, will be set forth in a
security, (3)prospectus supplement, in a post-effective amendment or in filings we make with the
power to revoke a trust, discretionary account or similar arrangement, or (4)SEC under the
automatic termination of a trust, discretionary account or similar arrangement.Name of Selling Securityholder | Total Common Stock
Beneficially Owned Prior
to Resale of the Common
Stock by Selling
Securityholder (1) | Total Common Stock
Beneficially Owned After
Resale of the Common
Stock by the Selling
Securityholder |
| Number | Percent | Number | Percent |
Luxor Capital Partners, LP (2) | | 999,621 | | | 2.8 | % | | | * | | | * |
Luxor Capital Partners Offshore Master Fund, LP (2) | | 1,006,389 | | | 2.8 | % | | | * | | | * |
Luxor Wavefront, LP (2) | | 204,285 | | | 0.6 | % | | | * | | | * |
Thebes Offshore Master Fund, LP (2) | | 45,619 | | | 0.1 | % | | | * | | | * |
Corrib Master Fund, Ltd. (3) | | 253,810 | | | 0.7 | % | | | * | | | * |
| (1) | Includes existing shares of common stock held or beneficially owned by the selling securityholders as reported on their most recent Schedule 13D, 13G or Form 13F filed with the Securities and Exchange Commission or otherwise reported to the Company by the selling securityholders. |
| (2) | Luxor Capital Partners, LP, a Delaware limited partnership, holds 999,621 shares of common stock. Luxor Capital Partners Offshore Master Fund, LP, a Cayman Islands limited partnership, holds 1,006,389 shares of common stock. Luxor Wavefront, LP, a Delaware limited partnership, holds 204,285 shares of common stock. Thebes Offshore Master Fund, LP, a Cayman Islands limited partnership, holds 45,619 shares of common stock.. Luxor Capital Partners Offshore Master Fund, LP is a subsidiary of Luxor Capital Partners Offshore, Ltd., a Cayman Islands exempted company. Thebes Partners Offshore, Ltd., a Cayman Islands exempted company, is the owner of a controlling interest, and together with a minority investor owns 100% of the interests, in Thebes Offshore Master Fund, LP. LCG Holdings, LLC, a Delaware limited liability company, is the general partner of Luxor Capital Partners, LP, Luxor Wavefront, LP, Luxor Capital Partners Offshore Master Fund, LP and Thebes Offshore Master Fund, LP. Luxor Capital Group, LP, a Delaware limited partnership, acts as the investment manager of Luxor Capital Partners, LP, Luxor Wavefront, LP, Luxor Capital Partners Offshore Master Fund, LP, Luxor Capital Partners Offshore Master Fund, LP, Thebes Partners Offshore, Ltd., and Thebes Offshore Master Fund, LP (collectively, the "Funds"). Luxor Management, LLC, a Delaware limited liability company, is the general partner of Luxor Capital Group, LP. Mr. Christian Leone, a United States citizen (“Mr. Leone”), is the |
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managing member of Luxor Management, LLC. Mr. Leone is the managing member of LCG Holdings, LLC. By virtue of these relationships, LCG Holdings, LLC may be deemed to have voting and dispositive power with respect to the shares of common stock owned directly by Luxor Capital Partners, LP, Luxor Wavefront, LP, Luxor Capital Partners Offshore Master Fund, LP and Thebes Offshore Master Fund, LP. By virtue of these relationships, each of Luxor Capital Group, LP, Luxor Management, LLC and Mr. Leone may be deemed to have voting and dispositive power with respect to the shares of common stock beneficially owned by the Funds.
| (3) | Includes 253,810 shares held by Corrib Master Fund, Ltd., a Cayman Islands exempted company. |
| * | These figures cannot be estimated at this time. |
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We or the selling securityholderssecurity holders may sell the applicable securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributedoffered by this prospectus from time to time in one or more transactions:transactions, including without limitation:
at
• directly to one or more purchasers;
• through agents;
• to or through underwriters, brokers or dealers; or
• through a fixed price or prices, which may be changed;
at market prices prevailing at the timecombination of sale;
at prices related to such prevailing market prices; or
at negotiated prices.
Each time that any of these methods.
A distribution of the selling securityholderssecurities offered by this prospectus may also be effected through the issuance of derivative securities, including without limitation, warrants, subscriptions, exchangeable securities, forward delivery contracts and the writing of options.
In addition, the manner in which we may sell some or all of the securities covered by this prospectus we and the selling securityholdersinclude, without limitation, through:
• a block trade in which a broker-dealer will provideattempt to sell as agent, but may position or resell a prospectus supplement or supplements that will describe the method of distribution and set forth the terms and conditionsportion of the offeringblock, as principal, in order to facilitate the transaction;
• purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account;
• ordinary brokerage transactions and transactions in which a broker solicits purchasers; or
• privately negotiated transactions;
• settlement of short sales;
• transactions through broker-dealers to sell a specified number of such securities includingat a stipulated price per security;
• an exchange distribution in accordance with the offering pricerules of the securities and the proceedsapplicable exchange; or
• a combination of any such methods of sale.
We may also enter into hedging transactions. For example, we may:
• enter into transactions with a broker-dealer or affiliate thereof in connection with which such broker-dealer or affiliate will engage in short sales of shares of our common stock pursuant to
the selling securityholders.Offers to purchase the securities being offered by this prospectus, in which case such broker-dealer or affiliate may be solicited directly. Agents may also be designateduse shares of common stock received from us to solicit offersclose out its short positions;
• sell securities short and redeliver such shares to purchase the securities from timeclose out our short positions;
• enter into option or other types of transactions that require us to
time. Any agent involved in the offerdeliver shares of common stock to a broker-dealer or
sale of our securitiesan affiliate thereof, who will
be identified in a prospectus supplement.If a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell the securitiesor transfer shares of common stock under this prospectus; or loan or pledge shares of common stock to the public at varying prices to be determined by the dealer at the time of resale.
Ifa broker-dealer or an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, the selling securityholders, or the purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriteraffiliate thereof, who may sell the securities toloaned shares or, through dealers, and those dealers may receive compensationin an event of default in the formcase of discounts, concessions or commissions froma pledge, sell the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying pricespledged shares pursuant to be determined by the dealer.
Any compensation paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We or the selling securityholders may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons for certain expenses.
Any common stock will be listed on NYSE MKT LLC, but any other securities may or may not be listed on a national securities exchange. To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. this prospectus.
In addition, we may enter into derivative
or hedging transactions with third parties, or sell securities
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not covered by this prospectus to third parties in privately negotiated transactions. In connection with such a transaction, the third parties may sell the applicable securities covered by and pursuant to this prospectus and an applicable prospectus supplement or pricing supplement, as the case may be. If so, the third party may use securities borrowed from us to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement so indicates,or pricing supplement, as the case may be.
A prospectus supplement with respect to each offering of securities will state the terms of the offering of the securities, including:
• the name or names of any underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any;
• the public offering price or purchase price of the securities and the net proceeds to be received by us from the sale;
• any delayed delivery arrangements;
• any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
• any discounts or concessions allowed or reallowed or paid to dealers; and
• any securities exchange or markets on which the securities may be listed.
The offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may be effected from time to time in one or more transactions, including privately negotiated transactions, either:
• at a fixed price or prices, which may be changed;
• at market prices prevailing at the time of sale;
• at prices related to the prevailing market prices; or
• at negotiated prices.
General
Any public offering price and any discounts, commissions, concessions or other items constituting compensation allowed or reallowed or paid to underwriters, dealers, agents or remarketing firms may be changed from time to time. The underwriters, dealers, agents and remarketing firms that participate in the distribution of the offered securities may be “underwriters” as defined in the Securities Act. Any discounts or commissions they receive from us and any profits they receive on the resale of the offered securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify any underwriters, agents or dealers and describe their commissions, fees or discounts in the applicable prospectus supplement or pricing supplement, as the case may be.
Underwriters and Agents
If underwriters are used in a sale, they will acquire the offered securities for their own account. The underwriters may resell the offered securities in one or more transactions, including negotiated transactions. These sales may be made at a fixed public offering price or prices, which may be changed, at market prices prevailing at the time of the sale, at prices related to such prevailing market price or at negotiated prices. We may offer the securities to the public through an underwriting syndicate or through a single underwriter. The underwriters in any particular offering will be mentioned in the applicable prospectus supplement or pricing supplement, as the case may be.
Unless otherwise specified in connection with those derivatives,any particular offering of securities, the third partiesobligations of the underwriters to purchase the offered securities will be subject to certain conditions contained in an underwriting agreement that we will enter into with the underwriters at the time of the sale to them. The underwriters will be obligated to purchase all of the securities of the series offered if any of the securities are purchased, unless otherwise specified in connection with any particular offering of securities. Any initial offering price and any discounts or concessions allowed, reallowed or paid to dealers may be changed from time to time.
We may designate agents to sell the offered securities. Unless otherwise specified in connection with any particular offering of securities, the agents will agree to use their best efforts to solicit purchases for the period of their appointment. We may also sell the offered securities to one or more remarketing firms, acting as principals for their own accounts or as agents for us. These firms will remarket the offered securities upon purchasing them in accordance with a redemption or repayment pursuant to the terms of the offered securities. A prospectus supplement or pricing supplement, as the case may be will identify any remarketing firm and will describe the terms of its agreement, if any, with us and its compensation.
In connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents may also sell securities covered by this prospectus and the applicable prospectus supplement,to hedge their positions in these outstanding securities, including in short sale transactions. If so, the third partyunderwriters or agents may use the securities pledged by us or borrowedreceived from us or others to settle those sales orunder these arrangements to close out any related open borrowings of stock,securities.
Dealers
We may sell the offered securities to dealers as principals. We may negotiate and pay dealers’ commissions, discounts or concessions for their services. The dealer may usethen resell such securities received fromto the public either at varying prices to be determined by the dealer or at a fixed offering price agreed to with us at the time of resale. Dealers engaged by us may allow other dealers to participate in settlement of those derivativesresales.
Direct Sales
We may choose to close outsell the offered securities directly. In this case, no underwriters or agents would be involved.
At-the-Market Offerings
We may also sell the securities offered by any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (orin “at-the-market offerings” within the meaning of Rule 415 of the Securities Act of 1933, to or through a post-effective amendment). In addition, wemarket maker or into an existing trading market, on an exchange or otherwise.
Institutional Purchasers
We may
otherwise loanauthorize agents, dealers or
pledgeunderwriters to solicit certain institutional investors to purchase offered securities
on a delayed delivery basis pursuant to
delayed delivery contracts providing for payment and delivery on a
financial institution or other third party that in turn may sell the securities short using this prospectus and anspecified future date. The applicable prospectus
supplement. Such financial institutionsupplement or
other third partypricing supplement, as the case may
transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.We have advisedbe, will provide the selling securityholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to the activities of the selling securityholders and their affiliates.
The specific termsdetails of any lock-up provisions in respect of any givensuch arrangement, including the offering price and commissions payable on the solicitations.
We will
be described in the applicable prospectus supplement.In complianceenter into such delayed contracts only with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealerinstitutional purchasers that we approve. These institutions may not exceed 8% of the aggregate proceeds of the offering.
Theinclude commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification; Other Relationships
We may have agreements with agents, underwriters, dealers and agentsremarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act. Agents, underwriters, dealers and remarketing firms, and their affiliates, may engage in transactions with, us, or perform services for, us in the ordinary course of businessbusiness. This includes commercial banking and investment banking transactions.
Market-Making, Stabilization and Other Transactions
There is currently no market for
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LEGAL MATTERS
Latham & Watkins LLP will pass upon certain legal matters relating to the saleany of the offered securities, other than shares of our common stock, which are listed on the NYSE. If the offered hereby bysecurities are traded after their initial issuance, they may trade at a discount from their initial offering price, depending upon prevailing interest rates, the selling stockholders. Additional legal matters maymarket for similar securities and other factors. While it is possible that an underwriter could inform us that it intends to make a market in the offered securities, such underwriter would not be passed uponobligated to do so, and any such market-making could be discontinued at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop for us, the selling securityholdersoffered securities. We have no current plans for listing of the preferred stock, depositary shares, warrants, subscription rights, purchase contracts or purchase units on any underwriters, dealerssecurities exchange or agents, by counsel that wequotation system; any such listing with respect to any particular preferred stock, depositary shares, warrants, subscription rights, purchase contracts or purchase units will namebe described in the applicable prospectus supplement or pricing supplement, as the case may be.
In connection with any offering of shares of common stock, preferred stock, depositary shares, warrants, subscription rights, purchase contracts or purchase units or securities that provide for the issuance of shares of our common stock upon conversion, exchange or exercise, as the case may be, the underwriters may purchase and sell shares of common stock, preferred stock, depositary shares, warrants, subscription rights, purchase contracts or purchase units in the open market. These transactions may include short sales, syndicate covering transactions and stabilizing transactions. Short sales involve syndicate sales of shares of common stock in excess of the number of shares to be purchased by the underwriters in the offering, which creates a syndicate short position. “Covered” short sales are sales of shares made in an amount up to the number of shares represented by the underwriters’ over-allotment option. In determining the source of shares to close out the covered syndicate short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. Transactions to close out the covered syndicate short involve either purchases of the shares of common stock in the open market after the distribution has been completed or the exercise of the over-allotment option. The underwriters may also make “naked” short sales of shares in excess of the over-allotment option. The underwriters must close out any naked short position by purchasing shares of common stock in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of bids for or purchases of shares in the open market while the offering is in progress for the purpose of pegging, fixing or maintaining the price of the securities.
In connection with any offering, the underwriters may also engage in penalty bids. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters may, if they commence these transactions, discontinue them at any time.
LEGAL MATTERS
Certain legal matters will be passed upon us by Woods Oviatt Gilman LLP. Any underwriters will be advised about legal matters by their own counsel, which will be named in an accompanying prospectus supplement.
The consolidated financial statements
and financial statement schedules of HC2 Holdings, Inc. as of December 31,
20152022 and
20142021 and for each of the
threetwo years in the period ended December 31,
20152022 and
management’smanagement's assessment of the effectiveness of internal control over financial reporting as of December 31,
20152022 incorporated by reference in this
Prospectus and in the Registration Statement have been so incorporated in reliance on the reports of BDO USA, LLP
(n/k/a BDO USA, P.C.), an independent registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of Bridgehouse Marine Limited as of and for the years ended December 31, 2013 and 2012, included in HC2 Holdings, Inc. Current Report on Form 8-K/A dated December 8, 2014, incorporated by reference in this Prospectus have been so incorporated in reliance on the report of BDO LLP, independent accountants, incorporated herein by reference given on the authority of said firm as experts in auditing and accounting. BDO LLP, London, United Kingdom, is a member of the Institute of Chartered Accountants in England and Wales.
The consolidated audited financial statements of Schuff International, Inc. as of December 29, 2013 and December 30, 2012, and for each of the three years in the period ended December 29, 2013, which report appears in the Form 8-K/A filed June 4, 2014, of HC2 Holdings, Inc., have been incorporated by reference herein and elsewhere in the registration statement in reliance upon the report of Grant Thornton LLP, independent certified public accountants, upon the authority of said firm as experts in accounting and auditing.
The financial statements of United Teacher Associates Insurance Company, as of December 31, 2014 and 2013, and for each of the three years in the period ended December 31, 2014, appearing in HC2 Holdings, Inc.’s Form 8-K filed on September 8, 2015, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon, and incorporated herein by reference. Such financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The financial statements of Continental General Insurance Company, as of December 31, 2014 and 2013, and for each of the three years in the period ended December 31, 2014, appearing in HC2 Holdings, Inc.’s Form 8-K filed on September 8, 2015, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon, and incorporated herein by reference. Such financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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PART II
Item 14.
Other Expenses of Issuance and Distribution
The following is an estimateexpenses relating to the registration of the expenses (all of which are tosecurities will be paidborne by the registrant) that we may incur in connection withregistrant.
| | | | | | | | | | | |
| |
| Securities and Exchange Commission Registration Fee | $ | 5,510.00 |
| Accounting Fees and Expenses | $ | * |
| Legal Fees and Expenses | $ | * |
| Printing Fees | $ | * |
| Transfer Agents’ Fees and Expenses | $ | * |
| Stock Exchange Listing Fees | $ | * |
| Miscellaneous | $ | * |
| Total | $ | * |
* These fees and expenses depend on the securities
being registered hereby.SEC registration fee | $ | 358.4 | |
Fees and expenses of the trustee | $ | | (1) |
Printing expenses | $ | | (1) |
Legal fees and expenses | $ | | (1) |
Accounting fees and expenses | $ | | (1) |
Miscellaneous | $ | | (1) |
Total | $ | | (1) |
| (1) | These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item 15.
Indemnification of Directors and OfficersSubsection (a) of
The registrant is a Delaware corporation. Reference is made to Section 145102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”), which enables a corporation in its certificate of incorporation to eliminate or limit the personal liability of a director or officer for violations of such director or officer’s fiduciary duty, except:
•a director or officer for any breach of such director or officer’s duty of loyalty to the corporation or its stockholders;
•a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
•a director, pursuant to Section 174 of the DGCL empowers(providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions);
•a director of officer for any transaction from which such director or officer derived an improper personal benefit; and
•an officer in any action by or in the right of the corporation.
Reference is also made to Section 145 of the DGCL, which provides that a corporation
tomay indemnify any
personpersons, including officers and directors, who
wasare, or
is a party or who isare threatened to be made,
a partyparties to any threatened, pending or completed
legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of
thesuch corporation)
, by reason of the fact that
thesuch person is or was a director, officer, employee or agent of
thesuch corporation or is or was serving at the request of
thesuch corporation as a director, officer, employee or agent of another corporation
partnership, joint venture, trust or
other enterprise, againstenterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by
thesuch person in connection with such action, suit or proceeding,
if the personprovided such director, officer, employee or agent acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe
that the person’s conduct was unlawful.
Subsection (b) of Section 145 empowers a A Delaware corporation tomay indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completedofficers and directors in an action or suit by or in the right of the corporation to procure a judgment in its favor by reason ofunder the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation,same conditions, except that no indemnification shall be made in respect of any claim, issueis permitted without judicial approval if the officer or matter as to which such person shall have beendirector is adjudged to be liable to the corporation unless and only to the extent that the Court of Chancerycorporation. Where an officer or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such persondirector is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action suit or proceeding referred to in subsections (a) and (b) of Section 145,above, the corporation must indemnify him or in defense of any claim, issueher against the expenses that such officer or matter therein, such person shall be indemnified against expenses (including attorneys’ fees)director actually and reasonably incurred by such person in connection therewith; thatincurred. The indemnification provided for by Section 145 shallpermitted under the DGCL is not be deemed exclusive, of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation is empowered to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
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employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such,liabilities whether or not the corporationindemnification would have the power to indemnify such person against such liabilities under Section 145.
Section 102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.
Article Six of the Company’sbe permitted by statute.
The registrant’s Second Amended and Restated Certificate of Incorporation
as amended (the “Charter”), and
Section 5 of Article V of the SecondFourth Amended and Restated
By-lawsBy-Laws provide for indemnification of
the Company, as amended (the “By-laws”), provide that,its directors and officers to the fullest extent
permitted under the DGCL, its directors will not be personally liable for monetary damages for breach of fiduciary duty as a director. In addition, Article Seven of the Charter and Section 1 and Section 4, respectively, of Article V of the By-laws, provide that the Company shall indemnify and hold harmless and advance expenses to the fullest extentcurrently permitted by
Delaware law to its directors and officers who are made or are threatened to be made a party or are otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative.In addition, the CompanyDGCL. The registrant also has entered into indemnification agreements with its officersdirectors and officers. In addition, the registrant maintains liability insurance for its directors including its Chairman and Chief Executive Officer. These agreements require the Company to indemnify such individuals, to the fullest extent permitted by Delaware law, for certain liabilities to which they may become subject as a result of their affiliation with Registrant.
The foregoing summaries are subject to the complete text of the DGCL, the Company’s Charter and By-laws and the other arrangements referred to above and are qualified in their entirety by reference thereto.
officers.
Item 16.
Exhibits(a) Exhibits
A listList of Exhibits.
The following exhibits filed withto this registration statement on Form S-3 is set forthare incorporated by reference herein.
| | | | | | | | |
| Exhibit No. | | Description of Exhibits |
| 1.1* | | Form of Underwriting Agreement. |
| | |
| 4.1 | | |
| | |
| 4.2 | | |
| | |
| 4.3 | | |
| | |
| 4.4 | | |
| | |
| 4.5 | | |
| | |
| 4.6 | | |
| | |
| 4.7 | | |
| | |
| 4.8 | | |
| | |
| 4.9* | | Form of Certificate of Designations with respect to any preferred stock issued hereunder. |
| | |
| 4.10 | | |
| | |
| 4.11 | | |
| | |
| 4.12 | | Secured Note dated October 24, 2019, by and among HC2 Station, HC2 LPTV, HC2 Broadcasting Inc. ("HC2 Broadcasting"), HC2 Network Inc. ("HC2 Network") (collectively the "Subsidiary Borrowers"), HC2 Broadcasting Intermediate Holdings Inc. ("HC2 Intermediate") (the "Intermediate Parent"), HC2 Broadcasting Holdings (the "Parent Borrower" and, together with the Intermediate Parent and the Subsidiary Borrowers, the "Borrowers"), and MSD PCOF Partners XVIII, LLC ("MSD") (incorporated by reference to Exhibit 4.12 to INNOVATE's Annual Report on Form 10-K, filed on March 16, 2020) (File No. 001-35210) |
| | |
| 4.13 | | Amended and Restated Secured Note dated October 24, 2019, by and among HC2 Station, HC2 LPTV, HC2 Broadcasting, HC2 Network (collectively, the "Subsidiary Borrowers"), HC2 Intermediate (the "Intermediate Parent), HC2 Broadcasting Holdings (the "Parent Borrower" and, together with the Intermediate Parent and the Subsidiary Borrowers, the "Borrowers", Great American Life Insurance Company ("GALIC") and Great American Insurance Company ("GAIC"). (collectively, the "Subsidiary Borrowers"), HC2 Intermediate (the "Intermediate Parent), HC2 Broadcasting Holdings (the "Parent Borrower" and, together with the Intermediate Parent and the Subsidiary Borrowers, the "Borrowers", Great American Life Insurance Company ("GALIC") and Great American Insurance Company ("GAIC") (incorporated by reference to Exhibit 4.13 to INNOVATE's Annual Report on Form 10-K, filed on March 16, 2020) (File No. 001-35210) |
| | |
| | | | | | | | |
| 4.14 | | First Omnibus Amendment to Secured Notes and Intercreditor Agreement by and among Station Group, LPTV, Broadcasting, Network, and HC2 Broadcasting Inc., Intermediate Parent, Parent Borrower, and MSD PCOF Partners, XVIII, LLC ("MSD"), GALIC and GAIC (incorporated by reference to Exhibit 4.1 to INNOVATE’s Quarterly Report on Form 10-Q, filed on May 11, 2020) (File No. 001-35210) |
| | |
| 4.15 | | |
| | |
| 4.16 | | |
| | |
| 4.17 | | |
| | |
| 4.18 | | |
| | |
| 4.19 | | |
| | |
| 4.20 | | |
| | |
| 4.21 | | |
| | |
| 4.22 | | |
| | |
| 4.23 | | |
| | |
| 4.24* | | Form of Depositary Agreement (including form of Depositary Receipt). |
| | |
| 4.25* | | Form of Warrant Agreement (including form of Warrant Certificate). |
| | |
| 4.26* | | Form of Subscription Rights Agreement (including form of Subscription Rights Certificate). |
| | |
| 4.27* | | Form of Purchase Contract Agreement (including form of Purchase Contract Certificate). |
| | |
| 4.28* | | Form of Purchase Unit Agreement (including form of Purchase Unit Certificate). |
| | |
| 5.1 | | |
| | |
| 23.1 | | |
| | |
| 23.3 | | |
| | |
| 24.1 | | |
| | |
| 107.1 | | |
* To be filed by amendment to the
Exhibit Index and isRegistration Statement or incorporated
herein by
reference.reference from documents filed or to be filed with the SEC under the Securities Exchange Act of 1934, as amended.
The undersigned registrant hereby undertakes:
(1)
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)
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
CommissionSEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and(iii)
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)
aboveof this section do not apply if 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
thethis registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
a part of
thethis registration
statement.statement;TABLE OF CONTENTS
(2) That,2.That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
4. That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
i. Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
thethis registration statement as of the date the filed prospectus was deemed part of and included in
thethis registration statement; and
(B)
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
thethis 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
thethis registration statement or made in a document incorporated or deemed incorporated by reference into
thethis registration statement or prospectus that is part of
thethis 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
thethis registration statement or prospectus that was part of
thethis registration statement or made in any such document immediately prior to such effective date.
(5)
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
securities:Thethe securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
i. Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
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)
iii. The portion of any other free writing prospectus relating to the offering
prepared by or on behalf ofcontaining material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
iv. Any other
communicationscommunication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
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 such securities at that time shall be deemed to be the initial
bona fide offering thereof.
TABLE OF CONTENTS
(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 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in New Yorkthe City New York,of West Palm Beach, State of Florida on September 29, 2023.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | |
| INNOVATE CORP. |
| | | |
| By: | | /S/ PAUL K. VOIGT |
| | Name: | Paul K. Voigt |
| | Title: | Chief Executive Officer |
In accordance with the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the
12th day of August, 2016. | HC2 HOLDINGS, INC.
|
| | |
| By:
| /s/ Michael Sena
|
| Name:
| Michael Sena
|
| Title:
| Chief Financial Officer (Principal Financial and Accounting Officer)
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that eachdates stated. Each person whose signature appears below constitutes and appoints Paul L. RobinsonK. Voigt and Michael J. Sena or eitherand each of them severally, as his or her true and lawful attorneys-in-factattorney-in-fact and agents,agent, each acting along 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 file and sign any andor all amendments including(including post-effective amendmentsamendments) and exhibits to the Registration Statement on Form S-3, and to any registration statement forfiled under SEC Rule 462, and to file the same, offering that is to be effective under Rule 462(b) of the Securities Act, to this registration statement,with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission,SEC, granting unto said attorneys-in-factattorney-in-fact and agents,agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewithand about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-factattorney-in-fact and agents,agent, or theirhis or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed below by the following persons on behalf of the registrant in the capacities andindicated on the dates indicated.September 29, 2023.
SIGNATURE
| TITLE
| DATE
| | | | | | |
| Signature | | Title |
/s/ Philip A. Falcone
| President,
| |
| /S/ PAUL K. VOIGT | | |
| Paul K. Voigt | | Chief Executive Officer and Chairman of the Board of Directors (Principal |
| | (Principal Executive Officer) | August 12, 2016
|
Philip A. Falcone
| | |
| /S/ MICHAEL J. SENA | | |
/s/ Michael J. Sena
| | Chief Financial Officer (Principal Financial and Accounting Officer) | August 12, 2016
|
Michael Sena
| | (Principal Financial Officer) |
| | |
/s/ Lee Hillman S/ AVRAM A. GLAZER | Director
| August 12, 2016
|
Lee Hillman
Avram A. Glazer | | Director |
| | |
/s/ Wayne Barr, Jr. S/ BRIAN S. GOLDSTEIN | Director
| August 12, 2016
|
Wayne Barr, Jr.
Brian S. Goldstein | | Director |
| | |
/s/ Robert Leffler S/ WARREN H. GFELLER | Director
| August 12, 2016
|
Robert Leffler
| | |
| | |
/s/ Warren H. Gfeller
| Director
| August 12, 2016
Director |
Warren H. Gfeller
| | |
TABLE OF CONTENTS
EXHIBIT INDEX
Exhibit
Number
| Description
|
1.1*
/S/ AMY WILKINSON | Form of Underwriting Agreement.
| |
3.1
Amy Wilkinson | Second Amended and Restated Certificate of Incorporation of HC2 Holdings, Inc. (“HC2”) (incorporated by reference to Exhibit 3.1 to HC2’s Form 8-A, filed on June 20, 2011) (File No. 001-35210).
|
3.2
| Certificate of Ownership of HC2 (incorporated by reference to Exhibit 3.1 to HC2’s Current Report on Form 8-K, filed on October 18, 2013) (File No. 001-35210).
|
3.3
| Certificate of Ownership and Merger (incorporated by reference to Exhibit 3.1 to HC2’s Current Report on Form 8-K, filed on April 11, 2014) (File No. 001-35210).
|
3.4
| Certificate of Amendment (incorporated by reference to Exhibit 3.1 to HC2’s Current Report on Form 8-K, filed on June 18, 2014) (File No. 001-35210).
|
3.5
| Second Amended and Restated By-laws of HC2 (incorporated by reference to Exhibit 3.2 to HC2’s Current Report on Form 8-K, filed on April 27, 2012) (File No. 001-35210).
|
4.1
| Certificate of Amendment to the Certificate of Designation of Series A Convertible Participating Preferred Stock of HC2 (incorporated by reference to Exhibit 4.2 to HC2’s Current Report on Form 8-K, filed on January 9, 2015) (File No. 001-35210).
|
4.2
| Certificate of Amendment to the Certificate of Designation of Series A-1 Convertible Participating Preferred Stock of HC2 (incorporated by reference to Exhibit 4.3 to HC2’s Current Report on Form 8-K, filed on January 9, 2015) (File No. 001-35210).
|
4.3
| Certificate of Designation of Series A-2 Convertible Participating Preferred Stock of HC2 (incorporated by reference to Exhibit 4.1 to HC2’s Current Report on Form 8-K, filed on January 9, 2015) (File No. 001-35210).
|
4.4
| Specimen of Common Stock (incorporated by reference to Exhibit 3.3 to HC2’s Form 8-A, filed on June 20, 2011) (File No. 001-35210).
|
4.5
| Certificate of Correction of the Certificate of Amendment to the Certificate of Designation of Series A Convertible Participating Preferred Stock of HC2 filed on January 5, 2015 (incorporated by reference to Exhibit 4.1 to HC2’s Quarterly Report on Form 10-Q, filed on August 10, 2015) (File No. 001-35210).
|
4.6
| Certificate of Correction of the Certificate of Amendment to the Certificate of Designation of Series A Convertible Participating Preferred Stock of HC2 filed on September 22, 2014 (incorporated by reference to Exhibit 4.2 to HC2’s Quarterly Report on Form 10-Q, filed on August 10, 2015) (File No. 001-35210).
|
4.7
| Certificate of Correction of the Certificate of Amendment to the Certificate of Designation of Series A Convertible Participating Preferred Stock of HC2 filed on May 29, 2014 (incorporated by reference to Exhibit 4.3 to HC2’s Quarterly Report on Form 10-Q, filed on August 10, 2015) (File No. 001-35210).
|
4.8
| Certificate of Correction of the Certificate of Amendment to the Certificate of Designation of Series A-1 Convertible Participating Preferred Stock of HC2 filed on January 5, 2015 (incorporated by reference to Exhibit 4.4 to HC2’s Quarterly Report on Form 10-Q, filed on August 10, 2015) (File No. 001-35210).
|
4.9
| Certificate of Correction of the Certificate of Amendment to the Certificate of Designation of Series A-1 Convertible Participating Preferred Stock of HC2 filed on September 22, 2014 (incorporated by reference to Exhibit 4.5 to HC2’s Quarterly Report on Form 10-Q, filed on August 10, 2015) (File No. 001-35210).
Director |
TABLE OF CONTENTS
Exhibit
Number
| Description
|
4.10
| Certificate of Correction of the Certificate of Amendment to the Certificate of Designation of Series A-2 Convertible Participating Preferred Stock of HC2 filed on January 5, 2015 (incorporated by reference to Exhibit 4.6 to HC2’s Quarterly Report on Form 10-Q, filed on August 10, 2015) (File No. 001-35210).
|
4.11
| Amended and Restated Certificate of Designation of Series A-1 Convertible Participating Preferred Stock of HC2 Holdings, Inc. (incorporated by reference to Exhibit 10.1 to HC2’s Quarterly Report on Form 10-Q, filed on August 9, 2016) (File No. 001-35210).
|
5.1*
| Opinion of Latham & Watkins LLP.
|
23.1*
| Consent of Latham & Watkins LLP (included in Exhibit 5.1).
|
23.2
| Consent of BDO USA, LLP, independent registered public accounting firm.
|
23.3
| Consent of BDO LLP, independent accountant.
|
23.4
| Consent of Grant Thornton, LLP, independent certified public accountants.
|
23.5
| Consent of Ernst & Young LLP, independent auditor, regarding United Teacher Associates Insurance Company.
|
23.6
| Consent of Ernst & Young LLP, independent auditor, regarding Continental General Insurance Company.
|
24.1
| Powers of Attorney (incorporated by reference to the signature page hereto).
|
| * | To be filed by amendment or incorporated by reference in connection with the offering of the securities. |
