United States Antimony Corp S-3, filed Aug 26, 2020
United States Antimony Corp (UAMY)
S-3
2020-08-26
View Original
Added on
October 19, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
UNITED STATES ANTIMONY CORPORATION
(Exact
name of registrant as specified in its charter)
Montana
(State
or other jurisdiction of incorporation or
organization)
81-0305822
(I.R.S.
Employer Identification Number)
P.O.
Box 643, Thompson Fall, Montana 59873 Phone: (406)
827-3523
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
John
Gustavsen, 49 Steamboat Way, Thompson Falls, Montana 59873 Phone:
(406) 827-3523
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
(Approximate
date of commencement of proposed sale to the public)
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: ☒
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same
offering. ☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following
box. ☐
If this
Form is a post-effective amendment filed pursuant to General
Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following
box. ☐
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
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Large accelerated filer
☐
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Accelerated filer
☐
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Smaller reporting company
☒
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Non-accelerated filer
☐
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Emerging growth company
☐
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SEC 870
(05-19)
Persons who are to
respond to the collection of information contained in this form are
not required to respond unless the form displays a currently valid
OMB control number.
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of Securities
Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Amount to be registered (1)
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Proposed maximum offering price per unit (2)
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Proposed maximum aggregate offering price
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Amount of registration fee
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Common
Stock, par value $0.01 per share
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11,485,716
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$0.45
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$5,168,572.20
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$670.88
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(1) The
shares will be offered for resale by selling
stockholders. Pursuant to Rule 416 under the Securities Act of
1933, as amended, there is also being registered hereby such
indeterminate number of additional shares of common stock, par
value $0.01 per share, of the registrant as may be issued or
issuable because of stock splits, stock dividends, stock
distributions, and similar transactions.
(2) Estimated solely for the purpose of computing the amount of the
registration fee for the shares of common stock being registered in
accordance with Rule 457(c) under the Securities Act of 1933, as
amended, based upon the average of the high and low prices for a
share of the registrant’s common stock as reported on NYSE
American, where the Company’s stock is listed, on August 24,
2020.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The information in this preliminary prospectus is not complete and
may be changed. The selling stockholders may not sell these
securities until the registration statement filed with the
Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities
and the selling stockholders named in this prospectus are not
soliciting offers to buy these securities in any jurisdiction
where the offer or sale is not permitted.
Subject to Completion, Dated August 25, 2020.
11,485,716 Shares
UNITED STATES
ANTIMONY CORPORATION
Common Stock
This
prospectus relates to the resale, from time to time, of up to
11,485,716 shares of our common stock by the selling stockholders,
including 5,742,858 shares of our common stock that are issuable
upon the exercise of outstanding warrants to purchase our common
stock held by the selling stockholders. The selling stockholders
acquired 5,742,858 of the shares of common stock and the warrants
to purchase 5,742,858 shares of our common stock pursuant to the
securities purchase agreement dated July 23, 2020.
We
are not selling any securities under this prospectus and we will
not receive any proceeds from the sale of the shares. We will
receive proceeds from any cash exercise of the warrants, which, if
exercised in cash with respect to all of the 5,742,858 shares of
common stock offered hereby, would result in gross proceeds to us
of $2.64 million; however, we cannot predict when and in what
amounts or if the warrants will be exercised and there can be no
assurance the warrants will be exercised for cash, in which case we
would not receive any cash proceeds.
We
have agreed to bear all of the expenses incurred in connection with
the registration of these shares. The selling stockholders will pay
or assume discounts, commissions, fees of underwriters, selling
brokers or dealer managers, if any, incurred for the sale of shares
of our common stock.
The
selling stockholders identified in this prospectus may offer the
shares from time to time through public or private transactions at
prevailing market prices, at prices related to prevailing market
prices or at privately negotiated prices. For additional
information on the methods of sale that may be used by the selling
stockholders, see the section entitled “Plan of
Distribution” on page 12. For a list of the selling
stockholders, see the section entitled “Selling
Stockholders” on page 9.
We
may amend or supplement this prospectus from time to time by filing
amendments or supplements as required. You should read the entire
prospectus and any amendments or supplements carefully before you
make your investment decision.
Our
common stock is listed on the NYSE American under the symbol
“UAMY”. The last reported sales price of our common
stock on the NYSE American on August 24, 2020 was $0.44 per
share.
An investment in our common stock involves significant risks. You
should carefully consider the risk factors discussed in the
prospectus before you make your decision to invest in our common
stock.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities or
passed upon the accuracy or adequacy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus is August 25, 2020
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
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5
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PROSPECTUS SUMMARY
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6
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RISK FACTORS
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7
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
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7
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DESCRIPTION OF PRIVATE PLACEMENT
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8
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USE OF PROCEEDS
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8
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SELLING STOCKHOLDERS
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8
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PLAN OF DISTRIBUTION
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11
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DESCRIPTION OF CAPITAL STOCK
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12
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LEGAL MATTERS
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14
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EXPERTS
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14
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WHERE YOU CAN FIND MORE INFORMATION
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14
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INCORPORATION OF DOCUMENTS BY REFERENCE
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15
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No
dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this
prospectus. You must not rely on any unauthorized information or
representations. This prospectus is an offer to sell only the
shares offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. The information
contained in this prospectus is current only as of its
date.
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC. The selling
stockholders may from time to time sell up to 11,485,716 shares of common stock, as
described in this prospectus, in one or more offerings. We have
agreed to pay the expenses incurred in registering these shares,
including legal and accounting fee.
This
prospectus does not contain all of the information included in the
registration statement. For a more complete understanding of the
offering of the securities, you should refer to the registration
statement, including its exhibits. A prospectus supplement may also
add, update or change information contained or incorporated by
reference in this prospectus. This prospectus, together with any
applicable prospectus supplements and the documents incorporated by
reference into this prospectus, includes all material information
relating to the offering of securities under this prospectus. You
should carefully read this prospectus, any applicable prospectus
supplement, the information and documents incorporated herein by
reference and the additional information under the heading
“Where You Can Find More Information” before making an
investment decision.
You
should rely only on the information we have provided or
incorporated by reference in this prospectus or any prospectus
supplement. We have not authorized anyone to provide you with
information different from that contained or incorporated by
reference in this prospectus. No dealer, salesperson or other
person is authorized to give any information or to represent
anything not contained or incorporated by reference in this
prospectus. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the
securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should assume that
the information in this prospectus or any prospectus supplement is
accurate only as of the date on the front of the document and that
any information we have incorporated herein by reference is
accurate only as of the date of the document incorporated by
reference, regardless of the time of delivery of this prospectus or
any sale of a security.
We
further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in the accompanying
prospectus were made solely for the benefit of the parties to such
agreement, including, in some cases, for the purpose of allocating
risk among the parties to such agreements, and should not be deemed
to be a representation, warranty or covenant to you. Moreover, such
representations, warranties or covenants were accurate only as of
the date when made. Accordingly, such representations, warranties
and covenants should not be relied on as accurately representing
the current state of our affairs.
Unless
the context otherwise required, “United States Antimony
Corporation,” “UAMY,” “USAC,”
“the Company,” “we,” “us,”
“our” and similar terms refer to United States Antimony
Corporation and its subsidiaries.
5
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this
prospectus. This summary does not contain all of the information
that you should consider before deciding to invest in our common
stock. You should read this entire prospectus
carefully, including the information in our filings with the
Securities and Exchange Commission, or SEC, incorporated by
reference in this prospectus.
Overview
United
States Antimony Corporation, or USAC, was incorporated in Montana
in January 1970 to mine and produce antimony products. In December
1983, we suspended antimony mining operations but continued to
produce antimony products from domestic and foreign sources. In
April 1998, we formed United States Antimony SA de CV or USAMSA, to
mine and smelt antimony in Mexico. Bear River Zeolite Company or
BRZ, was incorporated in 2000, and it is mining and producing
zeolite in southeastern Idaho. On August 19, 2005, USAC formed
Antimonio de Mexico, S. A. de C. V. to explore and develop antimony
and silver deposits in Mexico. Our principal business is the
production and sale of antimony, silver, gold, and zeolite
products. On May 16, 2012, we started trading on the NYSE MKT (now
NYSE AMERICAN) under the symbol UAMY.
Corporate Information
Our corporate offices are located at 47 Cox Gulch,
P.O. Box 643, Thompson Falls, Montana 59873. Our telephone number
is (406) 827-3523. Our Internet address is www.usantimony.com.
On this web site, we post the following filings as soon as
reasonably practicable after they are electronically filed with or
furnished to the U.S. Securities and Exchange Commission
(“SEC”): our Annual Reports on Form 10-K; our
Quarterly Reports on Form 10-Q; our Current Reports on Form 8-K;
our proxy statements related to our annual stockholders’
meetings; and any amendments to those reports or statements. All
such filings are available on our web site free of charge. The
charters of our audit, nominating and governance and compensation
committees and our Code of Ethics Policy are also available on our
web site and in print to any stockholder who requests them. The
content on our web site, or that can be accessed through our web
site, is not part of this prospectus.
Additional Information
For
additional information related to our business and operations,
please refer to the reports incorporated herein by reference,
including our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2020 and June 30, 2020 and Annual Report on Form 10-K for
the year ended December 31, 2019, as described under the caption
“Incorporation of Documents by Reference” on page 16 of
this prospectus.
We
are a “smaller reporting company” as defined in Rule
12b-2 of the Exchange Act and have elected to take advantage of
certain of the scaled disclosure available to smaller reporting
companies.
The Offering
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Common
stock offered by the selling stockholders
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11,485,716 shares, which includes 5,742,858 shares issuable
upon the exercise of warrants
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Common
stock outstanding immediately before this offering
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75,740,259 shares
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Use of
proceeds
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All
proceeds from the sale of shares of common stock offered hereby
will be for the account of the selling stockholders. We will not
receive any proceeds from the sale of common stock offered pursuant
to this prospectus. We will receive proceeds upon cash exercises of
the warrants to purchase the shares of common stock offered hereby,
if any. See the caption “Use of Proceeds” in this
prospectus.
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Risk
Factors
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See
“Risk Factors” and other information appearing
elsewhere in this prospectus for a discussion of factors you should
carefully consider before deciding whether to invest in our common
stock.
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Terms
of this offering
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The
selling stockholders, including their transferees, donees,
pledgees, assignees and successors-in-interest, may sell, transfer
or otherwise dispose of any or all of the shares of common stock
offered by this prospectus from time to time on the NYSE American
or any other stock exchange, market or trading facility on which
the shares are traded or in private transactions. The shares of
common stock may be sold at fixed prices, at market prices
prevailing at the time of sale, at prices related to prevailing
market price or at negotiated prices.
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NYSE
American symbol
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“UAMY”
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6
The
number of shares of common stock outstanding is based on 75,740,259
shares outstanding as of August 24, 2020, and does not give effect
to:
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●
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452,041
issued and outstanding warrants to purchase Common Stock at a price
of $0.65 purchased pursuant to the December 2019 securities
purchase agreement;
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750,000
issued and outstanding (non-convertible) shares of Series B
preferred stock;
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177,904
issued and outstanding (non-convertible) shares of Series C
preferred stock;
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●
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1,751,005
issued and outstanding (convertible to common stock on a 1:1 basis)
shares of Series D preferred stock; and
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●
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5,742,858
shares of common stock underlying the warrants held by the selling
stockholders at an exercise price of $0.46 per share that were
purchased pursuant to the securities purchase agreement dated July
23, 2020.
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RISK FACTORS
Investing
in our common stock involves a high degree of risk. Before
investing in our common stock, you should consider carefully the
risks and uncertainties discussed under “Risk Factors”
in our Annual Report on Form 10-K for the year ended December 31,
2019 and in our Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2020 and June 30, 2020, which are incorporated by
reference herein in their entirety. If any of the risks
incorporated by reference herein occur, our business, financial
condition, results of operations and future growth prospects could
be materially and adversely affected. In these circumstances, the
market price of our common stock could decline, and you may lose
all or part of your investment.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this
prospectus include forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 (the “Securities Act”) and
Section 21E of the Exchange Act that relate to future events or our
future financial performance and involve known and unknown risks,
uncertainties and other factors that may cause our actual results,
levels of activity, performance or achievements to differ
materially from any future results, levels of activity, performance
or achievements expressed or implied by these forward-looking
statements. The sections in our periodic reports, including our
Annual Reports on Form 10-K, entitled “Business,”
“Risk Factors,” and “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations,” as well as other sections in this prospectus and
the documents or reports incorporated by reference in this
prospectus, discuss some of the risks and uncertainties that could
contribute to these differences. Words such as
“believe,” “expect,”
“anticipate,” “estimate,”
“intend,” “may,” “plan,”
“potential,” “predict,”
“project,” “targets,” “likely,”
“will,” “would,” “could,”
“should,” “continue,” and similar
expressions or phrases, or the negative of those expressions or
phrases, are intended to identify forward-looking statements,
although not all forward-looking statements contain these
identifying words. You should carefully review and consider our
forward-looking statements in light of those risks and
uncertainties as you read this prospectus and documents
incorporated by reference into this prospectus. We undertake no
obligation to publicly update or review any forward-looking
statement, whether as a result of new information, future
developments or otherwise.
7
DESCRIPTION OF PRIVATE PLACEMENT
On July 23, 2020, we entered into a securities
purchase agreement with the selling stockholders for the issuance
and sale of an aggregate of 5,742,858 units, each unit consisting
of (i) one share of our common stock, and (ii) one warrant to
purchase one share of our common stock. The offering price of the
units was $0.35 per unit. This price reflects a modest discount to
the price of the common stock on July 23, 2020 because of the
temporary illiquidity of the units. The warrants included in the
units will become exercisable six months after the Issuance Date at
a price of $0.46 per share and expire five years from the Issuance
Date. The closing of the issuance and sale of these securities was
consummated on July 27, 2020 (“Issuance
Date”).
We
received gross proceeds of $2.0 million from the sale of these
securities, before deducting placement agent fees and offering
expenses, and excluding the exercise of any warrants.
We
filed the registration statement on Form S-3, of which this
prospectus forms a part, to fulfill our contractual obligations
under the registration rights agreement entered into concurrently
with the securities purchase agreement with the selling
stockholders to provide for the resale by the selling stockholders
of the shares of common stock offered hereby.
USE OF PROCEEDS
All
shares of our common stock offered by this prospectus are being
registered for the account of the selling stockholders identified
herein. We will not receive any of the proceeds from the sale of
these shares.
We
will receive proceeds from any cash exercise of the warrants,
which, if exercised in cash with respect to all of the 5,742,858
shares of common stock offered hereby, would result in gross
proceeds to us of $2.64 million.
We
intend to use any proceeds received by us from the cash exercise of
the warrants for working capital and general corporate purposes.
The proceeds shall not be used for the satisfaction of any portion
of the Company’s debt (other than payment of trade payables
in the ordinary course of the Company’s business and prior
practices), for the redemption of any common stock or common stock
equivalents, for the settlement of any outstanding litigation, or
in violation of FCPA or OFAC regulations. Other than these
statements, as of the date of this prospectus, we cannot specify
with certainty all of the particular uses for the net proceeds to
us from the cash exercise of the warrants. Accordingly, our
management will have broad discretion in the timing and application
of these proceeds. The holders of the warrants may exercise the
warrants at their own discretion and at any time until their
expiration in accordance with the terms of the warrants. As a
result, we cannot predict when or if the warrants will be
exercised, and it is possible that the warrants may expire and
never be exercised. In addition, the warrants are exercisable on a
cashless basis if at the time of exercise there is no effective
registration statement registering, or the prospectus contained
therein is not available for, the issuance of shares of common
stock for which the warrants are exercisable. As a result, we may
never receive meaningful, or any, cash proceeds from the exercise
of the warrants.
SELLING STOCKHOLDERS
The
common stock being offered by the selling stockholders are those
previously issued to the selling stockholders, and those issuable
to the selling stockholders, upon exercise of the warrants. For
additional information regarding the issuances of those shares of
common stock and warrants, see “Description of Private
Placement” above. We are registering the shares of common
stock in order to permit the selling stockholders to offer the
shares for resale from time to time. Except for the ownership of
the shares of common stock and the warrants, the selling
stockholders have not had any material relationship with us within
the past three years other than participating in prior securities
offerings.
The
table below lists the selling stockholders and other information
regarding the beneficial ownership of the shares of common stock by
each of the selling stockholders. The second column lists the
number of shares of common stock beneficially owned by each selling
stockholder, based on its ownership of the shares of common stock
and warrants, as of July 27, 2020, assuming exercise of the
warrants held by the selling stockholders on that date, without
regard to any limitations on exercises.
The
third column lists the shares of common stock being offered by this
prospectus by the selling stockholders.
In
accordance with the terms of a registration rights agreement with
the selling stockholders, this prospectus generally covers the
resale of the sum of (i) the number of shares of common stock
issued to the selling stockholders in the “Description of
Private Placement” described above and (ii) the maximum
number of shares of common stock issuable upon exercise of the
related warrants, determined as if the outstanding warrants were
exercised in full as of the trading day immediately preceding the
date this registration statement was initially filed with the SEC,
each as of the trading day immediately preceding the applicable
date of determination and all subject to adjustment as provided in
the registration right agreement, without regard to any limitations
on the exercise of the warrants. The fourth column assumes the sale
of all of the shares offered by the selling stockholders pursuant
to this prospectus.
Under
the terms of the warrants issued to Anson, EAM, ETE, ETE III, CVI,
Intracoastal, Ionic, L1, and Lind Global as a group, and to Hudson
(as defined in the following table), a selling stockholder may
not exercise the warrants to the extent such exercise would cause
such selling stockholder, together with its affiliates and
attribution parties, to beneficially own a number of shares of
common stock which would exceed 4.99%, or 9.99% for Hudson, of our
then outstanding common stock following such exercise, excluding
for purposes of such determination shares of common stock issuable
upon exercise of the warrants which have not been exercised. The
number of shares in the second column does not reflect this
limitation. The selling stockholders may sell all, some or none of
their shares in this offering. See “Plan of
Distribution.”
8
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Name of Selling Stockholder (1)
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Number of Shares of Common Stock Beneficially Owned Prior to
Offering (2)
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Maximum Number of shares of Common Stock to be Sold Pursuant to
this Prospectus (3)
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Number of Shares of Common Stock Owned After Offering
(4)
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Number
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Percentage
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Anson
Investments Master Fund LP (“Anson”)(5)
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1,428,572
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1,428,572
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-
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-
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Empery
Asset Master, Ltd (“EAM”)(6)
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926,616
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926,616
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-
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-
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Empery
Tax Efficient, LP (“ETE”)(7)
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266,580
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266,580
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-
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-
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Empery
Tax Efficient III, LP (“ETE III”)(8)
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521,090
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521,090
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-
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-
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CVI
Investments, Inc. (“CVI”)(9)
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1,200,000
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1,200,000
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-
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-
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Hudson
Bay Master Fund Ltd. (“Hudson”)(10)
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1,714,286
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1,714,286
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-
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-
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Intracoastal
Capital, LLC (“Intracoastal”)(11)
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1,714,284
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1,714,284
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-
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-
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Ionic
Ventures LLC (“Ionic”)(12)
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1,428,571
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1,428,571
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-
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-
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L1
Capital Global Opportunities Master Fund
(“L1”)(13)
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1,142,858
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1,142,858
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-
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-
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Lind
Global Partners, LLC (“Lind Global”)(14)
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1,142,858
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1,142,858
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-
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-
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(1) The information in this
table and the related footnotes is based upon information supplied
by the selling stockholders.
(2) Represents the total number
of shares of our common stock issued or issuable to each selling
stockholder as of the date of this prospectus, without regard to
ownership limitations described in footnotes (3) and (6) below,
including (i) all of the shares offered hereby, and (ii) to our
knowledge, all other securities held by each of the selling
stockholders as of the date hereof.
(3) Consists of the shares
of common stock, including the shares of common stock underlying
the warrants, issued in the July 2020 offering, see
“Description of Private Placement” above. Assumes that
none of the securities have been sold or otherwise transferred
prior to the date of this prospectus in transactions exempt from
the registration requirements of the Securities Act. All warrants,
except the warrant issued to Hudson, contain beneficial ownership
limitations, which provide that a holder of the warrants will not
have the right to exercise any portion of its warrants if the
holder, together with its affiliates, would beneficially own in
excess of 4.99% (9.99% for Hudson) of the number of shares of our
common stock outstanding immediately after giving effect to such
exercise, provided that upon at least 61 days prior notice to us, a
holder may increase or decrease such limitation up to a maximum of
9.99% of the number of shares of common stock
outstanding.
(4) Assumes that, after the date
of this prospectus and prior to completion of this offering, none
of the selling stockholders (i) acquires additional shares of our
common stock or other securities or (ii) sells or otherwise
disposes of shares of our common stock or other securities held by
such selling Stockholder other than as offered
hereby.
(5) The securities set forth in
the table above consist of 714,286 shares of common stock and a
warrant to purchase 714,286 shares of common stock. Anson is the
record and beneficial owner of the securities set forth in the
table, and shares voting and dispositive power over such securities
with Anson Advisors Inc and Anson Funds Management LP, the
Co-Investment Advisors of Anson. Bruce Winson is the managing
member of Anson Management GP LLC, which is the general partner of
Anson Funds Management LP. Moez Kassam and Amin Nathoo are
directors of Anson Advisors Inc. Mr. Winson, Mr. Kassam, and Mr.
Nathoo each disclaim beneficial ownership of the reported
securities except to the extent of their pecuniary interest
therein.
(6) The securities set forth in
the table above consist of 463,308 shares of common stock and a
warrant to purchase 463,308 shares of common stock. EAM is the
record and beneficial owner of the securities set forth in the
table. Empery Asset Management LP, the authorized agent of EAM, has
discretionary authority to vote and dispose of the shares held by
EAM and may be deemed to be the beneficial owner of these shares.
Martin Hoe and Ryan Lane, in their capacity as investment managers
of Empery Asset Management LP, may also be deemed to have
investment discretion and voting power over the shares held by EAM.
EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of
these shares.
9
(7) The securities set forth in
the table above consist of 133,290 shares of common stock and a
warrant to purchase 133,290 shares of common stock. ETE is the
record and beneficial owner of the securities set forth in the
table. Empery Asset Management LP, the authorized agent of ETE, has
discretionary authority to vote and dispose of the shares held by
ETE and may be deemed to be the beneficial owner of these shares.
Martin Hoe and Ryan Lane, in their capacity as investment managers
of Empery Asset Management LP, may also be deemed to have
investment discretion and voting power over the shares held by ETE.
ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of
these shares.
(8) The securities set forth in
the table above consist of 260,545 shares of common stock and a
warrant to purchase 260,545 shares of common stock. ETE III is the
record and beneficial owner of the securities set forth in the
table. Empery Asset Management LP, the authorized agent of ETE III,
has discretionary authority to vote and dispose of the shares held
by ETE III and may be deemed to be the beneficial owner of these
shares. Martin Hoe and Ryan Lane, in their capacity as investment
managers of Empery Asset Management LP, may also be deemed to have
investment discretion and voting power over the shares held by ETE
III. ETE III, Mr. Hoe and Mr. Lane each disclaim any beneficial
ownership of these shares.
(9) The securities set forth in
the table above consist of 600,000 shares of common stock and a
warrant to purchase 600,000 shares of common stock. CVI is the
record and beneficial owner of the securities set forth in the
table. Heights Capital Management, Inc., the authorized agent of
CVI, has discretionary authority to vote and dispose of the shares
held by CVI and may be deemed to be the beneficial owner of these
shares. Martin Kobinger, in his capacity as Investment Manager of
Heights Capital Management, Inc., may also be deemed to have
investment discretion and voting power over the shares held by CVI.
Mr. Kobinger disclaims any such beneficial ownership of the shares.
CVI Investments, Inc.is affiliated with one or more FINRA member,
none of whom are currently expected to participate in the sale
pursuant to the prospectus contained in the Registration Statement
of Shares purchased by the Investor in this Offering.
(10) The securities set forth in the
table above consist of 857,143 shares of common stock and a warrant
to purchase 857,143 shares of common stock. Hudson is the record
and beneficial owner of the securities set forth in the
table. Hudson
Bay Capital Management LP, the investment manager of Hudson Bay
Master Fund Ltd., has voting and investment power over these
securities. Sander Gerber is the managing member of Hudson Bay
Capital GP LLC, which is the general partner of Hudson Bay Capital
Management LP. Each of Hudson Bay Master Fund Ltd. and Sander
Gerber disclaims beneficial ownership over these
securities.
(11) The securities set forth in
the table above consist of 857,142 shares of common stock and a
warrant to purchase 857,142 shares of common stock. Intracoastal is
the record and beneficial owner of the securities set forth in the
table. Mitchell Kopin and Daniel Asher are the managers of
Intracoastal. Mitchell P. Kopin (“Mr.
Kopin”) and Daniel B.
Asher (“Mr.
Asher”), each of whom are
managers of Intracoastal, have shared voting control and investment
discretion over the securities reported herein that are held by
Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be
deemed to have beneficial ownership (as determined under Section
13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)) of the securities
reported herein that are held by Intracoastal.
(12) The securities set forth in
the table above consist of 714,286 shares of common stock and a
warrant to purchase 714,286 shares of common stock. Ionic is the
record and beneficial owner of the securities set forth in the
table. Brendan O’Neil and Keith Coulston are the managers of
Ionic. Mr. O’Neil and Mr. Coulston each disclaim beneficial
ownership of the reported securities except to the extent of their
pecuniary interest therein.
(13) The securities set forth in
the table above consist of 571,429 shares of common stock and a
warrant to purchase 571,429 shares of common stock. L1 is the
record and beneficial owner of the securities set forth in the
table. David Feldman is the portfolio manager of L1. Mr. Feldman
disclaims beneficial ownership of the reported securities except to
the extent of his pecuniary interest therein.
(14) The securities set forth in
the table above consist of 571,429 shares of common stock and a
warrant to purchase 571,429 shares of common stock. Lind Global is
the record and beneficial owner of the securities set forth in the
table. Jeff Easton is the managing member of Lind Global. Mr.
Easton disclaims beneficial ownership of the reported securities
except to the extent of his pecuniary interest
therein.
10
PLAN OF DISTRIBUTION
Each Selling Stockholder (the
“Selling
Stockholders”) of the
securities and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of
their securities covered hereby on the principal Trading Market or
any other stock exchange, market or trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. A Selling Stockholder may use any
one or more of the following methods when selling
securities:
●
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
●
block
trades in which the broker-dealer will attempt to sell the
securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
●
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its account;
●
an
exchange distribution in accordance with the rules of the
applicable exchange;
●
privately
negotiated transactions;
●
settlement
of short sales;
●
in
transactions through broker-dealers that agree with the Selling
Stockholders to sell a specified number of such securities at a
stipulated price per security;
●
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
●
a
combination of any such methods of sale; or
●
any
other method permitted pursuant to applicable law.
The
Selling Stockholders may also sell securities under Rule 144 or any
other exemption from registration under the Securities Act, if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2121; and in the case of a principal
transaction a markup or markdown in compliance with FINRA Rule
2121.
In
connection with the sale of the securities or interests therein,
the Selling Stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholders may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholders
may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or
more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act
in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the
resale of the securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
Each Selling Stockholder has informed the Company that it does not
have any written or oral agreement or understanding, directly or
indirectly, with any person to distribute the
securities.
The
Company is required to pay certain fees and expenses incurred by
the Company incident to the registration of the securities. The
Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
11
We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for the Company to be in compliance with the current
public information under Rule 144 under the Securities Act or any
other rule of similar effect or (ii) all of the securities have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied
with.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholders
or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
DESCRIPTION OF CAPITAL STOCK
The following summary is a description of the material terms of our
capital stock and is not complete. You should also refer to the
United States Antimony Corporation restated articles of
incorporation as amended and amended and restated bylaws, which are
included as exhibits to the registration statement of which this
prospectus forms a part, and the applicable provisions of the
Montana Business Corporation Act.
Our restated articles of incorporation as amended
authorize us to issue up to 90,000,000 shares of common stock, par
value $0.01 per share. On August 24, 2020, we had
75,740,259 shares of common stock outstanding, 750,000 shares
of Series B preferred stock outstanding (non-convertible), 177,904
shares of Series C preferred stock outstanding (non-convertible),
1,751,005 shares of Series D preferred stock outstanding
(convertible to common stock on a 1:1 basis), and 6,194,899
warrants outstanding to purchase common stock. On August 24, 2020
we had approximately 2,988 stockholders of
record.
Common and Preferred Stock
Shares
of our common stock have the following rights, preferences and
privileges:
Voting
Each
holder of common stock is entitled to one vote for each share of
common stock held on all matters submitted to a vote of
stockholders. Any action at a meeting at which a quorum is present
will be decided by a majority of the voting power present in person
or represented by proxy, except in the case of any election of
directors, which will be decided by a plurality of votes cast.
Cumulative voting is allowed.
Dividends
Holders
of our common stock are entitled to receive dividends when, as and
if declared by our board of directors out of funds legally
available for payment, subject to the rights of holders, if any, of
any class of stock having preference over the common stock. Any
decision to pay dividends on our common stock will be at the
discretion of our board of directors. Our board of directors may or
may not determine to declare dividends in the future. The
board’s determination to issue dividends will depend upon our
profitability and financial condition any contractual restrictions,
restrictions imposed by applicable law and the SEC, and other
factors that our board of directors deems relevant.
Liquidation Rights
In
the event of a voluntary or involuntary liquidation, dissolution or
winding up of the company, the holders of our common stock will be
entitled to share ratably on the basis of the number of shares held
in any of the assets available for distribution after we have paid
in full, or provided for payment of, all of our debts and after the
holders of all outstanding series of any class of stock have
preference over the common stock, if any, have received their
liquidation preferences in full.
Other
Our
issued and outstanding shares of common stock are fully paid and
non-assessable. Holders of shares of our common stock are not
entitled to preemptive rights. Shares of our common stock are not
convertible into shares of any other class of capital stock, nor
are they subject to any redemption or sinking fund
provisions.
12
Preferred Stock
Shares
of our Series B, Series C, and Series D preferred stock have the
following rights, preferences and privileges:
Voting
Series
B preferred stock is non-voting, except if and when dividends
payable on any of the Series B preferred stock is in default.
Holders of Series C preferred stock have the right to that number
of votes equal to the number of shares of common stock issuable
upon conversion of such Series C shares, and holders of Series D
preferred stock may vote equally with the shares of the common
stock of the Company and not as a separate class, and each holder
of shares of Series D preferred stock is entitled to such number of
votes as shall be equal to the whole number of shares of common
stock into which such holder’s aggregate number of shares of
Series D preferred stock are convertible immediately after the
close of business on the record date fixed for such meeting or the
effective date of such written consent.
Dividends and Liquidation Rights
Holders of Series B preferred stock are entitled
to receive out of the net profits of the Company, when and if
declared by the Board of Directors, cumulative dividends at the
annual rate of one cent ($0.01) per share, payable on the
31st
day of December. In the event of
liquidation of the Company, holders of Series B preferred stock
shall be entitled to receive, subject to the preference of the
holders of the Series A preferred stock, $1.00 per share plus all
accumulated dividends before any amounts shall be distributed among
the holders of the common stock.
Holders
of Series C preferred stock have no dividend rights. In the event
of any liquidation or winding up of the Company, the holders of
Series C shares shall be entitled to receive in preference to the
holders of common stock an amount per share equal to $0.55, subject
to the preferences of the holders of the Company’s
outstanding Series B preferred stock.
Holders
of Series D preferred stock have no dividend rights. In the event
of (i) any merger, sale, liquidation, or winding up of the Company,
or (ii) any sale of all or substantially all of the assets of the
Company (including subsidiaries, joint ventures, or partnerships),
or (iii) any other corporate change as defined in the Articles, the
holders of Series D preferred stock are entitled to be paid out of
the assets of the Company in preferences to the holders of common
stock but after payment and satisfaction of the liquidation
preferences of the holders of the Company’s outstanding
Series B and Series C preferred stock, an amount per share equal to
the greater of $2.50 or the equivalent market value of the number
of shares of common stock into which each share of Series D
preferred is convertible. Additional rights for holders of Series D
preferred stock are outlined in the Articles.
Other
Additional
rights of holders of preferred stock are outlined in the Restated
Articles of Incorporation as amended and attached hereto as an
exhibit.
Warrants
As
of July 27, 2020, we had outstanding (i) five-year warrants to
purchase 5,742,858 shares of common stock underlying warrants at an
exercise price of $0.46 per share issued in the July 2020 private
placement, and (ii) warrants to purchase 452,041 shares of common
stock underlying warrants at an exercise price of $0.65 per share
issued in the December 2019 private placement.
Registration Rights
In
connection with the July 2020 private placement, we entered into a
registration rights agreement with the selling stockholders under
which we have agreed to file the registration statement of which
this prospectus is a part with the SEC, covering the resale of the
5,742,858 shares of common stock issued in the July 2020 private
placement and the 5,742,858 shares of common stock issuable upon
exercise of the warrants issued in the July 2020 private
placement.
13
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Direct
Transfer, LLC, Issuer Direct Corporation, One Glenwood Avenue,
Suite 1001, Raleigh, North Carolina 27603.
Stock
Exchange Listing
Our
common stock is listed for trading on NYSE American under the
symbol “UAMY.”
Limitation
of Liability and Indemnification
Our Amended and Restated Bylaws
(“Bylaws”)
limit the liability of our officers and directors and provide that
we will indemnify our officers and directors, in each case, to the
fullest extent permitted by the Montana Business Corporation Act.
We have also obtained directors’ and officers’
liability insurance coverage in the amount of
$5,000,000.
The
foregoing discussion of our Bylaws and directors’ and
officers’ liability insurance is not intended to be
exhaustive and is qualified in its entirety by such Bylaws and
insurance policy, and applicable law, including the Montana
Business Corporation Act.
LEGAL MATTERS
Certain legal matters in connection with this
offering will be passed upon for us by Stoel Rives LLP, Boise,
Idaho.
EXPERTS
The financial statements as of December 31,
2019 and for the year then ended have been incorporated by
reference herein and in the registration statement in
reliance upon the report of DeCoria, Maichel, and Teague, P.C.,
independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts in
accounting and auditing. The financial statements as of
December 31, 2018 and for the year then ended have been
incorporated by reference herein and in the registration
statement in reliance upon the report of DeCoria, Maichel, and
Teague, P.C., independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing. The reports from
DeCoria, Maichel, and Teague, P.C. for the years ended December 31,
2019 and 2018, respectively, include an explanatory paragraph as to
the Company’s ability to continue as a going
concern.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration
statement on Form S-3 under the Securities Act for the shares of
common stock being offered by this prospectus. This prospectus,
which is part of the registration statement, does not contain all
of the information included in the registration statement and the
exhibits. For further information about us and the common stock
offered by this prospectus, you should refer to the registration
statement and its exhibits. References in this prospectus to any of
our contracts or other documents are not necessarily complete, and
you should refer to the exhibits attached to the registration
statement for copies of the actual contract or document. You may
read and copy any document that we file at the SEC’s public
reference room located at 100 F Street, NE,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. SEC filings
are also available to the public at the SEC’s website
at www.sec.gov.
We
are subject to the reporting and information requirements of the
Exchange Act and, as a result, we file periodic and current
reports, proxy statements and other information with the SEC. We
make our periodic reports and other information filed with or
furnished to the SEC, available, free of charge, through our
website as soon as reasonably practicable after those reports and
other information are filed with or furnished to the
SEC.
The
information contained in, or that can be accessed through, our
website is not part of, and is not incorporated into, this
prospectus.
Additionally,
these periodic reports, proxy statements and other information
are available for inspection and copying at the public
reference room and website of the SEC referred to
above.
14
INCORPORATION OF DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” information
from other documents that we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with
the SEC prior to the date of this prospectus. We incorporate by
reference into this prospectus and the registration
statement of which this prospectus is a part the information
or documents listed below that we have filed with the
SEC:
● our
Annual Report on Form 10-K for the fiscal year ended December 31,
2019, filed with the SEC on April 14, 2020;
● all
other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the 2019 fiscal year, including our
Quarterly Reports on Form 10-Q for the three-month period ended
March 31, 2020, filed with the SEC on May 15, 2020 and for the
three-month period ended June 30, 2020, filed with the SEC on
August 19, 2020; and
● the
description of our common stock contained in our Registration
Statement filed on Form 8-A filed on May 16, 2012, including any
amendment or report filed for the purpose of updating such
description.
Additionally,
all documents filed by us with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after (i) the date of the initial
registration statement and prior to effectiveness of the
registration statement, and (ii) the date of this prospectus and
before the termination or completion of any offering hereunder,
shall be deemed to be incorporated by reference into this
prospectus from the respective dates of filing of such documents,
except that we do not incorporate any document or portion of a
document that is “furnished” to the SEC, but not deemed
“filed.”
We
will furnish without charge to you, on written or oral request, a
copy of any or all of the documents incorporated by reference in
this prospectus, including exhibits to these documents. You should
direct any requests for documents to United States Antimony
Corporation, Attn: Corporate Secretary, 47 Cox Gulch, P.O. Box 643,
Thompson Falls, Montana 59873.
The SEC maintains an Internet site that contains
reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, which may
be accessed at http://www.sec.gov. You also may access these
filings on our website at www.usantimony.com.
We do not incorporate the information on our website into this
prospectus or any supplement to this prospectus and you should not
consider any information on, or that can be accessed through, our
website as part of this prospectus or any supplement to this
prospectus (other than those filings with the SEC that we
specifically incorporate by reference into this prospectus or any
supplement to this prospectus).
Any
statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus will be deemed
modified, superseded or replaced for purposes of this prospectus to
the extent that a statement contained in this prospectus modifies,
supersedes or replaces such statement.
15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
13.
Other
Expenses of Issuance and Distribution
The
following table sets forth the various expenses incurred or to be
incurred in connection with the sale and distribution of the
securities being registered hereby, all of which will be borne by
us (except any underwriting discounts and commissions and expenses
incurred by the selling stockholders for brokerage, accounting, tax
or legal services or any other expenses incurred by the selling
stockholders in disposing of the shares). All amounts shown are
estimates and are given subject to future
contingencies.
|
SEC Registration
and Filing Fees
|
$671
|
|
Accounting Fees and
Expenses
|
-
|
|
Legal Fees and
Expenses
|
$31,000
|
|
Federal
Taxes
|
-
|
|
State
Taxes
|
-
|
|
Trustees’ and
Transfer Agents’ Fees
|
-
|
|
Printing,
Messenger, Telephone and Delivery Expenses
|
-
|
|
Miscellaneous
|
$10,000
|
|
Total
$
|
41,671
|
Item
14.
Indemnification
of Directors and Officers
Montana Business Corporation Act. As a
Montana corporation, the Company is subject to the Montana Business
Corporation Act (MCA 35-14-101 et seq., the “MBCA”), which provides
mandatory indemnification by the Company for a director who was
wholly successful in the defense of any proceeding to which the
director was a party because the director was a director of the
corporation. The MBCA also provides for (i) permissible
indemnification in certain circumstances as provided under Section
35-14-851, (ii) an advance for expenses under Section 35-14-853,
and (ii) court-ordered indemnification in certain circumstances as
provided under Section 35-14-854. All other provisions of the MBCA
governing indemnification applies to the Company except when the
MBCA allows the Company’s Restated Articles of Incorporation
as amended and/or Bylaws to govern.
Amended and Restated Bylaws. Our Bylaws
provide for the indemnification of our directors and officers and
provides a right of reimbursement or advancement of expenses as
detailed further in our Bylaws.
Insurance Policies. The Company has
directors’ and officers’ liability insurance in an
amount of $5,000,000. We intend to maintain insurance on behalf of
any person who is or was a director or officer against any loss
arising from any claim asserted against him or her and incurred by
him or her in any such capacity, subject to certain
exclusions.
The
foregoing discussion of our Bylaws, insurance policies, and the Act
is not intended to be exhaustive and is qualified in its entirety
by such Bylaws, insurance policies, the Act or any other applicable
law.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable.
Item
16.
Exhibits
(a)
Exhibits. The
exhibits to this registration statement are listed in the Exhibit
Index attached hereto and incorporated by reference
herein.
16
Item
17.
Undertakings
(a)
The undersigned hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
(i)
To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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 Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement.
(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), (ii), and (iii) of this section do not apply if the
registration statement is on Form S–1 (§ 239.11 of this
chapter), Form S–3 (§ 239.13 of this chapter), Form
SF–3 (§ 239.45 of this chapter) or Form F–3
(§ 239.33 of this chapter) and the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m or
78o(d))
that are incorporated by reference in the registration statement,
or, as to a registration statement on Form S–3, Form
SF–3 or Form F–3, is contained in a form of prospectus
filed pursuant to § 230.424(b) of this chapter that is part of
the registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability
under the Securities Act to any purchaser, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided,
however, that no statement made
in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(b)
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 hereunder, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
17
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
______________, State of ______________, on
______________________, 20___.
18
EXHIBIT INDEX
|
ExhibitNumber
|
|
Description
|
|
|
Restated
Articles of Incorporation, as amended as of July 23, 2020, filed
herewith.
|
|
|
|
Amended
and Restated Bylaws (Incorporated by reference to Form 8-K filed on
December 15, 2012).
|
|
|
|
Form of
Securities Purchase Agreement (Incorporated by reference to Form
8-K filed on July 27, 2020).
|
|
|
|
Form of
Registration Rights Agreement (Incorporated by reference to Form
8-K filed on July 27, 2020).
|
|
|
|
Form of
Common Stock Purchase Warrant (Incorporated by reference to Form
8-K filed on July 27, 2020).
|
|
|
5.1
|
|
Opinion
of Stoel Rives LLP with respect to the legality of the securities
being registered.
|
19
Exhibit
3.1
