If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a
registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is
a large accelerated filer, an accelerated filer, a non-accelerated filer, 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.
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. ¨
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended
(the “Securities Act”), utilizing a “shelf” registration process. Under this shelf registration process, we may
offer and sell securities from time to time and in one or more offerings up to a total dollar amount of $350,000,000 as described in this
prospectus. This prospectus provides you with a general description of the securities we may offer.
Each time we offer securities under this prospectus,
we will provide a prospectus supplement that will contain more specific information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the
information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. To the extent
that any statement that we make in a prospectus supplement is inconsistent with statements made in this prospectus, the statement made
in this prospectus will be deemed modified or superseded by those made in the prospectus supplement. We urge you to read carefully this
prospectus, any applicable prospectus supplement and any related free writing prospectuses we have authorized for use in connection with
a specific offering, together with the information incorporated herein by reference as described under the heading “Where You Can
Find More Information” and “Incorporation of Certain Information by Reference,” before buying any of the securities
being offered.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
You should rely only on the information that we
have provided or incorporated by reference in this prospectus, any applicable prospectus supplement and any related free writing prospectus
that we may authorize to be provided to you. We have not authorized anyone to provide you with any information or to make any representations
other than those contained in this prospectus, any applicable prospectus supplement or any related free writing prospectuses prepared
by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability
of, any other information that others may give you. 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 not assume that the information appearing
in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to
the date set forth on the front of the document or that any information we have incorporated by reference herein or therein is correct
on any date subsequent to the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, the
applicable prospectus supplement or any related free writing prospectus, or any sale of a security. Our business, financial condition,
results of operations and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions
contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the
summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed,
will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the section entitled “Where You Can Find More Information.”
Unless the context requires otherwise, references
in this prospectus to “Romeo,” “we,” “us” and “our” refer to Romeo Power, Inc. and its
consolidated subsidiaries, unless otherwise specified.
PROSPECTUS SUMMARY
This summary highlights selected information
contained elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain all of the information that
you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement
and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents
that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into
this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Overview
We are an industry leading energy storage technology
company focused on designing and manufacturing lithium-ion battery modules and packs for commercial electric vehicles. Through our energy
dense battery modules and packs, we enable large-scale sustainable transportation by delivering safe, longer lasting batteries that have
shorter charge times and longer life. With greater energy density, we are able to create lightweight and efficient solutions that deliver
superior performance and provide improved acceleration, range and durability compared to battery packs provided by our competitors. Our
modules and packs are customizable and scalable and are optimized by our proprietary battery management systems. We believe we produce
superior battery products compared to our competitors by leveraging our technical expertise and depth of knowledge of energy storage systems.
Background
Romeo Power, Inc. was originally incorporated under
the name RMG Acquisition Corp. (“RMG”) as a blank check company incorporated in Delaware on October 22, 2018 for the purpose
of effecting a merger, capital stock-exchange, asset acquisition, share purchase, reorganization or similar business combination. On October
5, 2020, RMG Merger Sub, Inc. a Delaware corporation and wholly owned subsidiary of RMG (“Merger Sub”), entered into an Agreement
and Plan of Merger (as amended, the “Merger Agreement”) with Romeo Systems, Inc., a Delaware corporation (“Legacy Romeo”).
On December 29, 2020, pursuant to the terms of the Merger Agreement, the business combination with Legacy Romeo was effected through the
merger of Merger Sub with and into Legacy Romeo, with Legacy Romeo continuing as the surviving company and as our wholly owned subsidiary
(the “Merger” and, collectively with the other transactions described in the Merger Agreement, the “Business Combination”).
Upon the closing of the Business Combination, we changed our name to Romeo Power, Inc.
Recent Developments
As of September 30, 2021, we had cash and cash equivalents
of $181 million. We have recurring losses, which have resulted in an accumulated deficit of $135 million as of September 30, 2021. As
a result of continuing anticipated operating cash outflows, including investments, amounts anticipated to be paid to BorgWarner Inc. and
costs to support future growth, we believe that substantial doubt exists regarding our ability to continue as a going concern without
additional funding or financing. Our management is currently developing plans to alleviate such doubt, but cannot conclude as of the date
of this prospectus that it is probable our plans will be successfully implemented or that we will be able to curtail our losses.
During the third quarter of 2021, we hired a new
Chief Executive Officer who became our Chief Operating Decision Maker (“CODM”), in place of the previous senior leadership
team which consisted of two individuals. Our new CODM changed how we manage our business and allocate resources, which resulted in modifications
to our organizational and segment structure. As a result, we reorganized from two segments (Romeo Power North America and Joint Venture
Support) to a single operating segment for the consolidated business. Our operations are now comprised of a single reportable segment.
As a result, the note on segment information was not presented in our Quarterly Report on Form 10-Q as of and for the nine months ended
September 30, 2021.
Our Annual Report on Form 10-K for the year ended
December 31, 2020 and our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2021 and June 30, 2021, which are
incorporated by reference into this prospectus, were not updated to reflect the retroactive change from two reportable segments to one.
Such retrospective segment presentation would have eliminated the segment disclosure in such filings but would not have had a material
impact on our consolidated financial statements.
Corporate Information
Our principal executive offices are located at 4380
Ayers Avenue, Vernon, CA 90058, and our telephone number is (833) 467-2237. Our website address is www.romeopower.com. Information
found on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider
it part of this prospectus or part of any prospectus supplement. Our website address is included in this prospectus as an inactive textual
reference only.
Description of Securities
We may offer shares of our common stock and preferred
stock, various series of debt securities and warrants or rights to purchase any of such securities, either individually or in combination
with other securities or in units, from time to time under this prospectus, together with the applicable prospectus supplement and
any related free writing prospectus, at prices and on terms to be determined by market conditions at the time of any offering. This prospectus
provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus,
we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including,
to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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maturity date, if applicable;
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original issue discount, if any;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion, exercise, exchange or sinking fund terms, if any;
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restrictive covenants, if any;
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voting or other rights, if any;
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conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion
or exchange prices or rates and in the securities or other property receivable upon conversion or exchange; and
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material or special U.S. federal income tax considerations, if any.
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The applicable prospectus supplement and any related
free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information contained in
this prospectus or in the documents we have incorporated by reference.
The securities may be offered directly to investors
from time to time, through agents designated by us or to or through agents, underwriters, brokers or dealers. We, and our agents, underwriters,
brokers or dealers, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities
to or through agents, underwriters, brokers or dealers, we will include in the applicable prospectus supplement:
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the names of those agents, underwriters, brokers or dealers;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment or other options to purchase additional securities, if any; and
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the net proceeds to us, if any.
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Use of Proceeds
Except as described in any applicable
prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we
intend to use the net proceeds from the sale of the securities under this prospectus for general corporate purposes, which may
include funding research and development, capital expenditures, working capital and general and administrative expenses. See
“Use of Proceeds” on page 7 of this prospectus.
New York Stock Exchange Listing
Our common stock is listed on the New York Stock
Exchange under the symbol “RMO.”
RISK FACTORS
Investing in our securities involves a high
degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties
described below, described under the heading “Risk Factors” contained in the applicable prospectus supplement and any
related free writing prospectus, and described under the section entitled “Risk Factors” contained in our most recent
Annual Report on Form 10-K, as well as any amendments thereto, our most recent Quarterly Report on Form 10-Q and other filings we
make with the SEC from time to time, which are incorporated by reference into this prospectus in their entirety, together with other
information in this prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for
use in connection with a specific offering. The risks described in these documents are not the only ones we face, but those that we
consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors
that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future
performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks
actually occur, our business, financial condition, results of operations, cash flow and future growth prospects could be seriously
harmed. This could cause the market price of our securities to decline, resulting in a loss of all or part of your investment.
Please also carefully read the section below entitled “Forward-Looking Statements.”
We have identified conditions and events that raise substantial
doubt about our ability to continue as a going concern.
As of September 30, 2021, we had cash and cash equivalents
of $181 million. We have recurring losses, which have resulted in an accumulated deficit of $135 million as of September 30, 2021. As
a result of continuing anticipated operating cash outflows, including investments, amounts anticipated to be paid to BorgWarner Inc. and
costs to support future growth, we believe that substantial doubt exists regarding our ability to continue as a going concern without
additional funding or financing. Our management is currently developing plans to alleviate such doubt, but there is no guarantee that
our plans will be successfully implemented or that we will be able to curtail our losses.
FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus
supplement, as well as the documents incorporated by reference in this prospectus or any accompanying prospectus supplement, contain “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These statements relate to future events or to our
future operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual
results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied
by the forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “anticipates,”
“believes,” “could,” “estimates,” “expects,” “may,” “plans,” “potential,”
“predicts,” “projects,” “should,” “would,” “will” and similar expressions
intended to identify forward-looking statements. Forward-looking statements may include, but are not limited to, statements about:
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our strategy, future operations, financial position,
estimated revenues and losses, projected costs, prospects and plans;
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our ability to maintain the listing of our securities
on the NYSE;
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the potential liquidity and trading of our securities;
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the implementation, market acceptance and success
of our business model;
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our ability to scale in a cost-effective manner;
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developments and projections relating to our
competitors and industry;
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our ability to develop new products, improve
existing products and adapt our business model to keep pace with industry trends;
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our ability to operate in highly competitive
markets and the potential adverse effects of this competition;
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our ability to maintain a high-level of client
service and expand operations;
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our ability to comply with various trade restrictions,
such as sanctions and export controls;
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our ability to comply with the anti-corruption
laws of the United States and various international jurisdictions;
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our ability to execute our business model, including
market acceptance of our planned products and services;
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the impact of health epidemics, including the
novel coronavirus (“COVID-19”) pandemic, on our business and the actions we may take in response thereto;
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our expectations regarding our ability to obtain
and maintain intellectual property protection and not infringe on the rights of others;
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our use of proceeds from this offering;
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our ability to continue as a going concern;
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our future capital requirements and sources and
uses of cash;
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our ability to obtain funding for our operations;
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our business, expansion plans and opportunities;
and
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the outcome of any known and unknown litigation
and regulatory proceedings
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These statements reflect our current views with
respect to future events, are based on assumptions and are subject to risks and uncertainties. Given these risks and uncertainties, you
should not place undue reliance on these forward-looking statements. We discuss in greater detail, and incorporate by reference into this
prospectus in their entirety, many of these risks and uncertainties under the heading “Risk Factors” contained in the applicable
prospectus supplement, in any free writing prospectus we may authorize for use in connection with a specific offering, and in our most
recent annual report on Form 10-K, as well as any amendments thereto reflected in subsequent filings with the SEC. Also, these forward-looking
statements represent our estimates and assumptions only as of the date of the document containing the applicable statement. Unless required
by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments.
Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking
statements. You should read this prospectus, the applicable prospectus supplement, together with the documents we have filed with the
SEC that are incorporated by reference and any free writing prospectus we have authorized for use in connection with a specific offering
completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of
the forward-looking statements in the foregoing documents by these cautionary statements.
USE OF PROCEEDS
Except as described in any applicable
prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we
currently intend to use the net proceeds from the sale of the securities under this prospectus for general corporate purposes, which
may include capital expenditures, working capital and general and administrative expenses. We may use a portion of the net proceeds
in order to acquire the 60% interest in our joint venture with BorgWarner Inc. (with its affiliates, including BorgWarner Ithaca
LLC, “BorgWarner”) that is currently owned by BorgWarner. The value of BorgWarner’s 60% interest in the joint
venture, as determined by an independent appraiser in accordance with the Joint Venture Operating Agreement, dated May 6, 2019, by
and among BorgWarner Ithaca LLC, Romeo Systems, Inc. and BorgWarner Romeo Power LLC (the “Operating Agreement”), and
including appropriate discounts pursuant to the Operating Agreement, is $28.6 million. We also may use a portion of the net proceeds
to acquire or invest in other businesses, products and technologies that are complementary to our own, although we have no current
plans, commitments or agreements to do so. Accordingly, we will retain broad discretion over the use of such proceeds. We will set
forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds, if any, received
from the sale of any securities sold pursuant to such prospectus supplement or free writing prospectus. Pending these uses, we
intend to temporarily invest the net proceeds primarily in short term, interest-bearing instruments.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, our second amended
and restated certificate of incorporation authorizes us to issue 250,000,000 shares of common stock, par value $0.0001 per share, and
10,000,000 shares of preferred stock, par value $0.0001 per share. As of December 31, 2021, there were 134,458,439 shares of common stock
outstanding and no shares of preferred stock outstanding.
The following summary describes the material terms
of our capital stock. The descriptions of capital stock are qualified by reference to our second amended and restated certificate of incorporation
and our amended and restated bylaws, which are incorporated by reference as exhibits into the registration statement of which this prospectus
is a part, and by reference to the applicable provisions of the Delaware General Corporation Law (the “DGCL”).
Common Stock
Voting. Our common stock is entitled to one
vote for each share held of record on all matters submitted to a vote of the stockholders, including the election of directors, and does
not have cumulative voting rights. Accordingly, the holders of a majority of the shares of our common stock entitled to vote in any election
of directors can elect all of the directors standing for election.
Dividends. Subject to preferences that may
be applicable to any then-outstanding preferred stock, the holders of common stock are entitled to receive dividends, if any, as may be
declared from time to time by our board of directors out of legally available funds, and shall share equally on a per share basis in such
dividends and distributions.
Liquidation. In the event of our liquidation,
dissolution or winding-up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference
granted to the holders of any outstanding shares of preferred stock.
Rights and Preferences. Holders of our common
stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to our
common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected
by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue in the future.
Fully Paid and Nonassessable. All of our
outstanding shares of common stock are fully paid and nonassessable.
Preferred Stock
Under our second amended and restated certificate
of incorporation, our board of directors has the authority, without further action by stockholders, to designate up to 10,000,000 shares
of preferred stock in one or more series and to fix or alter, from time to time, the designations, powers and rights of each series of
preferred stock and the qualifications, limitations or restrictions of any series of preferred stock, including dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices,
and the liquidation preference of any wholly unissued series of preferred stock, any or all of which may be greater than the rights of
the common stock, and to establish the number of shares constituting any such series. To date, none of the 10,000,000 authorized shares
of preferred stock have been designated by our board of directors.
Our board of directors will fix the rights, preferences,
privileges, qualifications and restrictions of the preferred stock of each series that we sell under this prospectus and any applicable
prospectus supplements in the certificate of designation relating to each such series. We will incorporate by reference as an exhibit
to the registration statement of which this prospectus is a part or as an exhibit to one or more Current Reports on Form 8-K, the form
of any certificate of designation that describes the terms of the series of preferred stock we are offering before the issuance of the
related series of preferred stock. This description will include:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share, if any;
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the purchase price per share;
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the dividend rate per share, dividend period, payment date or dates and method of calculation for dividends, as applicable;
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whether dividends, if any, will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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our right, if any, to defer payment of dividends and the maximum length of any such deferral period;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption or repurchase
rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and, if applicable,
the conversion price, or how it will be calculated, and under what circumstances and the mechanism by which it may be adjusted, and the
conversion period;
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whether the preferred stock will be exchangeable into debt securities or other securities of ours, and, if applicable, the exchange
price, or how it will be calculated, and under what circumstances it may be adjusted, and the exchange period;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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whether interests in the preferred stock will be represented by depositary shares;
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a discussion of any material or special U.S. federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up
our affairs;
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any limitations on issuances of any class or series of preferred stock ranking senior to or on parity with the series of preferred
stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms, rights, preferences, privileges, qualifications or limitations of, or restrictions on the preferred stock.
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If we issue and sell shares of preferred stock pursuant
to this prospectus, together with any applicable prospectus supplement or free writing prospectus, the shares will be fully paid and nonassessable
and will not have, or be subject to, any preemptive or similar rights.
The laws of the State of Delaware, the state of
our incorporation, provide that the holders of preferred stock will have the right to vote separately as a class on any proposal involving
fundamental changes in the rights of holders of such preferred stock. This right is in addition to any voting rights that may be provided
for in the applicable certificate of designation.
The issuance of preferred stock could
adversely affect the voting power, conversion or other rights of holders of common stock and reduce the likelihood that common
stockholders will receive dividend payments and payments upon liquidation. Preferred stock could be issued quickly with terms
designed to delay, deter or prevent a change in control of our company or make removal of management more difficult. Additionally,
the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
Delaware Anti-Takeover Law and Provisions of Our Second Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws
Our second amended and restated certificate of incorporation
and our amended and restated bylaws contain certain provisions that could have the effect of delaying, deterring or preventing another
party from acquiring control of us, and therefore could adversely affect the market price of our common stock. These provisions and certain
provisions of the DGCL which are summarized below, may also discourage coercive takeover practices and inadequate takeover bids, and are
designed, in part, to encourage persons seeking to acquire control of us to negotiate first with our board of directors. We believe that
the benefits of increased protection of our potential ability to negotiate more favorable terms with an unfriendly or unsolicited acquirer
outweigh the disadvantages of potentially discouraging a proposal to acquire us.
Delaware Anti-Takeover Law
We are subject to Section 203 of the DGLC (“Section
203”). Section 203 generally prohibits a public Delaware corporation from engaging in a “business combination” with
an “interested stockholder” for a period of three years following the time that such stockholder became an interested stockholder,
unless:
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prior to such time the board of directors of the corporation approved either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder;
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of
determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned
(i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right
to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or
special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock which is not owned by the interested stockholder.
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Section 203 defines a business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
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subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the
stock of any class or series of the corporation beneficially owned by the interested stockholder; and
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
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In general, Section 203 defines an interested stockholder
as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by the entity or person.
Stockholder Action; Special Meeting of Stockholders
Our second amended and restated certificate of
incorporation provides that stockholders may not take action by written consent, but may only take action at annual or special
meetings of stockholder. Our amended and restated bylaws provide that special meetings of stockholders may be called only by (i) the
chairperson of our board of directors, (ii) our chief executive officer or (iii) a majority vote of our board of directors.
Advance Notice Requirements for Stockholder Proposals and Director
Nominations
Our amended and restated bylaws provide that stockholders
seeking to bring business before our annual meeting of our stockholders, or to nominate candidates for election as directors at an annual
meeting or special meeting of our stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder’s
notice of its intent to bring business or to nominate candidates for election as directors at an annual meeting of our stockholders will
need to be received by the company secretary at our principal executive offices not later than the close of business on the 90th day nor
earlier than the close of business on the 120th day prior to the first anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that if the date of the annual meeting is more than 30 days before or more than 30 days after such anniversary
date, notice by the stockholder to be timely must be so delivered, or mailed and received, not later than the 90th day prior to such annual
meeting or, if later, the 10th day following the day on which public disclosure of the date of such annual meeting was first made. To
be timely, a stockholder’s notice of its intent to nominate candidates for election as directors at a special meeting of our stockholders
will need to be received by the company secretary at our principal executive offices not later than the close of business on the 90th
day prior to such special meeting or, if later, the 10th day following the day on which public disclosure of the date of such special
meeting was first made. Pursuant to Rule 14a-8 of the Exchange Act, proposals seeking inclusion in our annual proxy statement must comply
with the notice periods contained therein. Our amended and restated bylaws also specify certain requirements as to the form and content
of a stockholders’ meeting. These provisions may preclude our stockholders from bringing matters before a meeting of our stockholders
or from making nominations for directors at a meeting of stockholders.
Authorized but Unissued Shares
Our authorized but unissued common stock and preferred
stock will be available for future issuances without stockholder approval and could be utilized for a variety of corporate purposes, including
future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved
common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest,
tender offer, merger or otherwise.
Exclusive Forum Selection
Our second amended and restated certificate of incorporation
requires, to the fullest extent permitted by law, that derivative actions brought in our name, actions against directors, officers and
employees for breach of fiduciary duty and other similar actions may be brought only in the Court of Chancery in the State of Delaware
and, if brought outside of Delaware, the stockholder bringing the suit will be deemed to have consented to service of process on such
stockholder’s counsel except any action (i) as to which the Court of Chancery in the State of Delaware determines that there is
an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal
jurisdiction of the Court of Chancery within ten days following such determination), (ii) which is vested in the exclusive jurisdiction
of a court or forum other than the Court of Chancery or (iii) for which the Court of Chancery does not have subject matter jurisdiction.
Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to have notice of and
consented to the forum provisions in the second amended and restated certificate of incorporation.
This choice of forum provision may limit a stockholder’s
ability to bring a claim in a judicial forum that it finds favorable for disputes with us or any of our directors, officers, other employees
or stockholders, which may discourage lawsuits with respect to such claims. We cannot be certain that a court will decide that this provision
is either applicable or enforceable, and if a court were to find the choice of forum provision contained in our second amended and restated
certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving
such action in other jurisdictions.
Our second amended and restated certificate of
incorporation provides that the exclusive forum provision is applicable to the fullest extent permitted by applicable law.
Notwithstanding the foregoing, the choice of forum provision will not apply to claims brought to enforce any liability or duty
created by the Securities Act, the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. Section
27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the
Exchange Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to
enforce any duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive
jurisdiction.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is American Stock Transfer & Trust Company. The transfer agent for any series of preferred stock that we may offer under this
prospectus will be named and described in the prospectus supplement for that series.
Listing on the New York Stock Exchange
Our common stock is listed on the New York Stock
Exchange under the symbol “RMO”.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplements or free writing prospectuses, summarizes the material terms and provisions
of the debt securities that we may offer under this prospectus. We may issue debt securities from time to time, in one or more series,
as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply
generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securities
that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The terms of any debt securities
offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer
to an “indenture,” we also are referring to any supplemental indentures that specify the terms of a particular series of debt
securities.
We will issue the debt securities under an indenture
that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act”). We have filed forms of senior and subordinated indentures as exhibits to the registration
statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt
securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated
by reference from reports that we file with the SEC.
The following summaries of material provisions of
the senior debt securities, the subordinated debt securities and the related indentures are subject to, and qualified in their entirety
by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the
applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this
prospectus, as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the
terms of the senior indenture and the subordinated indenture are identical.
General
The terms of each series of debt securities will
be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in an officers’
certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We will describe in the applicable
prospectus supplement the terms of the series of debt securities being offered, including:
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the title of the series of debt securities;
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the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
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any limit upon the aggregate principal amount that may be issued;
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the maturity date or dates;
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the form of the debt securities of the series;
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the applicability of any guarantees;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms
of any subordination;
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is
a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another
security or the method by which any such portion shall be determined;
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the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such
dates;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at
our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions;
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the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or
analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the
currency or currency unit in which the debt securities are payable;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof;
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for
our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt
securities of that series;
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whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the
terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual
securities; and the depositary for such global security or securities;
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if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions
upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or
how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange
features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
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if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof;
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additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation,
merger or sale covenant;
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additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the
holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders
of debt securities issued under the indenture;
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the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars;
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whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions
upon which the election may be made;
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whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal
amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes;
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any restrictions on transfer, sale or assignment of the debt securities of the series; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes
in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement
the terms on which a series of debt securities may be convertible into or exchangeable for our common stock, our preferred stock or other
securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at
the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock, our preferred
stock or other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement
applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge
or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or
acquiror of such assets must assume all of our obligations under the indenture or the debt securities, as appropriate. If the debt securities
are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or
merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders
of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement
applicable to a particular series of debt securities, the following are events of default under the indenture with respect to any series
of debt securities that we may issue:
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if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable and the time for payment has not been
extended;
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if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice
of such failure from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of
the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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We will describe in each applicable prospectus supplement
any additional events of default relating to the relevant series of debt securities. If an event of default with respect to debt securities
of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable
immediately. If an event of default arises due to the occurrence of certain specified bankruptcy, insolvency or reorganization events,
the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and
payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and
its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have
cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the applicable indenture,
if an event of default under an indenture shall occur and be continuing, the trustee will be required in the exercise of its powers to
use the same degree of care and skill that a prudent person would use in the conduct of its own affairs; provided, however, that the trustee
will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders
of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding.
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A holder of the debt securities of any series will
have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request
and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense
to be incurred in compliance with instituting the proceeding as trustee; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of
the outstanding debt securities of that series other conflicting directions within 60 days after the notice, request and offer.
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These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee
regarding our compliance with specified covenants in the indenture.
If a default occurs and is continuing under the
applicable indenture and is actually known to a responsible officer of the trustee, the trustee must mail to each holder notice of the
default within 45 days after it occurs, unless such default has been cured. Except in the case of a default in the payment of principal
or premium of, or interest on, any debt security or certain other defaults specified in an indenture, the trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors, or responsible
officers of the trustee, in good faith determine that withholding notice is in the best interests of holders of the relevant series of
debt securities.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series
of debt securities that we may issue, we and the trustee may change an indenture without the consent of any holders with respect to the
following specific matters:
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to fix any ambiguity, defect or inconsistency in the indenture;
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to comply with the provisions described above under “—Consolidation, Merger or Sale;”
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities and to make all appropriate
changes for such purpose;
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to add to our covenants, restrictions, conditions or provisions
such new covenants, restrictions, conditions or provisions for the benefit of the holders
of all or any series of debt securities, and to make the occurrence, or the occurrence and
the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an event of default or to surrender any right or power conferred to us in the
indenture;
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to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of debt securities, as set forth in such indenture;
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to provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided
above under “— General,” to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee;
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; or
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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series in any material
respect; provided that any amendment made solely to conform the provisions of the indenture to the corresponding description of the debt
securities contained in the applicable prospectus or prospectus supplement shall be deemed not to adversely affect the interests of the
holders of such debt securities; provided further, that in connection with any such amendment we will provide the trustee with an officers’
certificate certifying that such amendment will not adversely affect the rights or interests of the holders of such debt securities.
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In addition, under the indenture, the rights of
holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority
in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable
upon the redemption of any series of any debt securities;
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver;
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changing any of our obligations to pay additional amounts;
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reducing the amount of principal of an original issue discount security or any other note payable upon acceleration of the maturity
thereof;
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changing the currency in which any note or any premium or interest is payable;
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impairing the right to enforce any payment on or with respect to any note;
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adversely changing the right to convert or exchange, including decreasing the conversion rate of or increasing the conversion price
of, such note, if applicable;
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in the case of the subordinated indenture, modifying the subordination provisions in a manner adverse to the holders of the subordinated
debt securities;
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if the debt securities are secured, changing the terms and conditions pursuant to which the debt securities are secured in a manner
adverse to the holders of the secured debt securities;
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reducing the requirements contained in the applicable indenture for quorum or voting;
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changing any of our obligations to maintain an office or agency in the places and for the purposes required by the indenture; or
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modifying any of the above provisions set forth in this paragraph.
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Discharge
Each indenture provides that, subject to the terms
of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series of debt securities,
we may elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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pay principal of and premium and interest on any debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest
on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company (“DTC”)
or another depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the
debt securities of a series are issued in global form and as book entry, a description of terms relating to any book-entry securities
will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to the terms
of the applicable indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the
holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized
denomination and of like tenor and aggregate principal amount.
Subject to the terms of the applicable indenture
and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon
duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange,
we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental
charges.
We will name in the applicable prospectus supplement
the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If we elect to redeem the debt securities of any
series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending
at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence and
continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable
indenture. Upon an event of default under an indenture, the trustee must use the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any
of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus
supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt
securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest
payment.
We will pay principal of and any premium and interest
on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to
certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of
the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus
supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying
agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee
for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter
may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be governed
by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ranking Debt Securities
The subordinated debt securities will be unsecured
and will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus
supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue. It also does not limit
us from issuing any other secured or unsecured debt.
The senior debt securities will be unsecured and
will rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit the amount of senior
debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
The following description, together with the additional
information we may include in any applicable prospectus supplement and free writing prospectus, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt
securities and may be issued in one or more series. Warrants may be offered independently or in combination with common stock, preferred
stock or debt securities offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms
we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular
terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing
prospectus. The following description of warrants will apply to the warrants offered by this prospectus unless we provide otherwise in
the applicable prospectus supplement. The applicable prospectus supplement for a particular series of warrants may specify different or
additional terms.
We will issue the warrants under a warrant agreement
that we will enter into with a warrant agent to be selected by us. The warrant agent will act solely as an agent of ours in connection
with the warrants and will not act as an agent for the holders or beneficial owners of the warrants. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant
and/or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are
offering, and any supplemental agreements, before the issuance of such warrants. The following summaries of material terms and provisions
of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all of the provisions of the
form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements applicable to a particular
series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplement and any applicable
free writing prospectus related to the particular series of warrants that we may offer under this prospectus, as well as any related free
writing prospectus, and the complete form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental
agreements that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement
the terms of the series of warrants being offered, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of material or special U.S. federal income tax considerations, if any, of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders of warrants
will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our
liquidation, dissolution or winding up or to exercise voting rights, if any.
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Exercise of Warrants
Each warrant will entitle the holder to purchase
the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus
supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Unless we otherwise
specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of business on the expiration date
set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration date, unexercised
warrants will become void.
Holders of the warrants may exercise the warrants
by delivering the warrant certificate representing the warrants to be exercised together with specified information, and paying the required
amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on
the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant
will be required to deliver to the warrant agent.
Upon receipt of payment and the warrant or warrant
certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other
office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable
upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant
or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus
supplement, the warrants and any warrant agreements will be governed by and construed in accordance with the internal laws of the State
of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our
agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of
any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the
related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
DESCRIPTION OF RIGHTS
General
We may issue rights to purchase common stock, preferred
stock or the other securities described in this prospectus. This prospectus and any accompanying prospectus supplement will contain the
material terms and conditions for each right. The accompanying prospectus supplement may add, update or change the terms and conditions
of the rights as described in this prospectus.
We will describe in the applicable prospectus supplement
the terms and conditions of the issue of rights being offered, the rights agreement relating to the rights and the rights certificates
representing the rights, including, as applicable:
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the title of the rights;
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the date of determining the stockholders entitled to the rights distribution;
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the title, aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights;
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the currencies in which the rights are being offered;
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the aggregate number of rights issued;
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the date, if any, on and after which the rights will be separately transferable;
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the date on which the right to exercise the rights will commence and the date on which the right will expire; and
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any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of
the rights.
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Exercise of Rights
Each right will entitle the holder of rights to
purchase for cash the principal amount of shares of common stock, preferred stock or other securities at the exercise price provided in
the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights
provided in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will be void.
Holders may exercise rights as described in the
applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward
the shares of common stock or preferred stock purchasable upon exercise of the rights. If less than all of the rights issued in any rights
offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters,
brokers or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described in
the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with the additional
information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable
prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below. However,
no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness.
We will file as exhibits to the registration statement
of which this prospectus is a part, or will incorporate by reference from a report that we file with the SEC, the form of unit agreement
that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related
series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their
entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units.
We urge you to read the applicable prospectus supplements related to the particular series of units that we sell under this prospectus,
as well as the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units comprised of one or more
debt securities, shares of common stock, shares of preferred stock, warrants or rights in any combination. Each unit will be issued so
that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities
included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement
the terms of the series of units, including:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The provisions described in this section, as well
as those described under “Description of Capital Stock,” “Description of Debt Securities,” “Description
of Warrants” and “Description of Rights” will apply to each unit and to any common stock, preferred stock, debt security,
warrant or right included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in numerous
distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under
the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single
bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in
case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder
of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We, the unit agents and any of their agents
may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any
purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the
contrary. See “Legal Ownership of Securities.”
LEGAL OWNERSHIP OF SECURITIES
We may issue securities in registered form or in
the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities
registered in their own names on the books that we or any applicable trustee, depositary, warrant agent or other agent maintain for this
purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons
who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect
holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in
book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only,
as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities
registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate
in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered
is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its
participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities,
and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants,
which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a global security will
not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities
are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security in certain situations,
as described under “-Special Situations When a Global Security Will Be Terminated”, or issue securities that are not issued
in global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities
held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we or any
applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the
securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those
securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only
because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities
in street name will be indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any
applicable trustee, agent or third party employed by us or a trustee or any agents, run only to the legal holders of the securities. We
do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities
only in global form.
For example, once we make a payment or give a
notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder is required, under
agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we
may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval
only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect
holders is up to the legal holders.
When we refer to “you” in this prospectus,
we mean those who invest in the securities being offered by this prospectus, whether they are the holders or only indirect holders of
those securities. When we refer to “your securities” in this prospectus, we mean the securities in which you will hold a direct
or indirect interest.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or
other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street
name, you should check with your own institution to find out:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders’ consent, if ever required;
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whether and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted
in the future;
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how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to
protect their interests; and
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if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
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Global Securities
A global security is a security that represents
one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities
will have the same terms.
Each security issued in book-entry form will be
represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that
we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered
in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We
describe those situations below under “— Special Situations When a Global Security Will Be Terminated.” As a result
of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities represented
by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must
be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with
another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the
security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security
indicates that the security will be issued as a global security, then the security will be represented by a global security at all times
unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing
system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
The rights of an indirect holder relating to a global
security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general
laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the
depositary that holds the global security.
If securities are issued only in the form of a global
security, an investor should be aware of the following:
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an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or
her interest in the securities, except in the special situations we describe below;
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an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above;
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an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required
by law to own their securities in non-book-entry form;
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an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
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the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global security. We and any applicable trustee have no responsibility for any aspect of
the depositary’s actions or for its records of ownership interests in a global security. We and the trustee also do not supervise
the depositary in any way;
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the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within
its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
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financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest
in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There
may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the
actions of any of those intermediaries.
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Special Situations When a Global Security Will Be Terminated
In a few special situations described below, a global
security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange,
the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders.
We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable
prospectus supplement, a global security will terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days;
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if we notify any applicable trustee that we wish to terminate that global security; or
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if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
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The applicable prospectus supplement may also list
additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus
supplement. When a global security is terminated, only the depositary, and not we, the trustee, the agent or other third party, as applicable,
is responsible for deciding the names of the institutions in whose names the securities represented by the global security will be registered
and, therefore, who will be the direct holders of those securities.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant
to underwritten public offerings, direct sales to the public, “at-the-market” offerings, negotiated transactions, block trades
or a combination of these methods. We may sell the securities to or through one or more underwriters or dealers (acting as principal or
agent), through agents, or directly to one or more purchasers. We may distribute securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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Each time we offer and sell securities, we will
provide a prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) that
will describe the terms of the offering of the securities, including, to the extent applicable:
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the name or names of any agents or underwriters, brokers or dealers and the amount of shares underwritten or purchased by each of
them, if any;
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the purchase price of the securities or other consideration therefor and the proceeds, if any, we will receive from the sale;
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any over-allotment or other options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to brokers or dealers; and
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any securities exchanges or markets on which such securities may be listed.
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Only underwriters named in the prospectus supplement
will be underwriters of the securities offered by the prospectus supplement. Dealers and agents participating in the distribution of the
securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting
discounts. If such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities
Act.
We may designate agents who agree to use their reasonable
efforts to solicit purchases of our securities for the period of their appointment or to sell our securities on a continuing basis. We
will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay to the agent in the
prospectus supplement.
If underwriters are used in the sale of securities,
the underwriters will acquire the securities for their own account and may resell the securities from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price, at varying prices determined at the time of sale, at prices related
to prevailing market prices or at negotiated prices. The obligations of the underwriters to purchase the securities will be subject to
the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated
to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment or other option.
If a dealer is used in the sale of securities, we or an underwriter will sell the securities to the dealer, as principal. The dealer may
then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required,
we will set forth in the prospectus supplement the name of the dealer and the terms of the transaction.
We may change from time to time any initial public
offering price and any discounts or concessions the underwriters allow or reallow or pay to brokers or dealers. We may use underwriters,
dealers or agents with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, dealer
or agent, the nature of any such relationship.
We may sell securities directly to one or more purchasers
without using underwriters or agents. Underwriters, brokers, dealers and agents that participate in the distribution of the securities
may be underwriters as defined in the Securities Act, and any discounts or commissions they receive from us and any profit on their resale
of the securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify in the applicable
prospectus supplement any underwriters, brokers, dealers or agents and will describe their compensation. We may have agreements with the
underwriters, brokers, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which they may be required to make with respect to these liabilities. Agents, underwriters,
brokers and dealers, and their affiliates, may engage in transactions with, or perform services for, us in the ordinary course of business.
We may authorize underwriters, brokers, dealers
or agents to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts
will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions
we pay for solicitation of these contracts.
Unless otherwise specified in the applicable prospectus
supplement, each class or series of securities we may offer will be a new issue of securities with no established trading market, other
than our common stock, which is listed on the New York Stock Exchange. We may elect to list any other class or series of securities on
any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters may make a market in these securities,
but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment
involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short covering transactions
involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution
is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause
the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of these activities
at any time.
Any underwriters that are qualified market makers
on the New York Stock Exchange may engage in passive market making transactions in the common stock on the New York Stock Exchange in
accordance with Rule 103 of Regulation M under the Exchange Act, during the business day prior to the pricing of the offering,
before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the
highest independent bid for such security. If all independent bids are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the
market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued
at any time.
In compliance with guidelines of the Financial Industry
Regulatory Authority (“FINRA”) the maximum consideration or discount to be received by any FINRA member or independent broker
dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and the applicable prospectus supplement.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement,
the validity of the securities offered by this prospectus, and any supplement thereto, will be passed upon for us by Paul Hastings LLP,
Los Angeles, California.
EXPERTS
The consolidated financial statements of Romeo Power,
Inc. as of December 31, 2020 and 2019 and for each of the two years in the period ended December 31, 2020, incorporated in this prospectus
and registration statement by reference from Romeo Power, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2020,
have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report thereon incorporated
herein by reference, and have been incorporated in this prospectus and registration statement in reliance upon such report and upon the
authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy
statements and other information with the SEC. The SEC maintains an Internet website at http://www.sec.gov that contains
reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including Romeo
Power, Inc.. You may also access our reports and proxy statements free of charge at our Internet website, http://www.romeopower.com.
The information contained in, or that can be accessed through, our website is not part of this prospectus. The prospectus included in
this filing is part of a registration statement filed by us with the SEC. The full registration statement can be obtained from the SEC,
as indicated above, or from us.
This prospectus is part of a registration statement
on Form S-3 we filed with the SEC relating to the securities to be offered. This prospectus does not contain all of the information we
have included in the registration statement and the accompanying exhibits and schedules in accordance with the rules and regulations of
the SEC, and we refer you to the omitted information. The statements this prospectus makes pertaining to the content of any contract,
agreement or other document that is an exhibit to the registration statement necessarily are summaries of their material provisions and
do not describe all exceptions and qualifications contained in those contracts, agreements or documents. You should read those contracts,
agreements or documents for information that may be important to you. The registration statement, exhibits and schedules are available
at the SEC’s Internet website.
You should rely only on information in this prospectus
or incorporated by reference herein. We have not authorized any person to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus
is accurate as of any date other than the date of the front page of this prospectus, regardless of the time of delivery of this prospectus
or any sale of the securities offered by this prospectus.
INCORPORATION OF CERTAIN INFORMATION 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. 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 (Commission File No. 001-38795):
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•
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our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on April 15, 2021;
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•
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our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2021, June 30, 2021 and September 30, 2021, filed with the SEC on May 17, 2021, August 16, 2021 and November 15, 2021, respectively;
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•
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our Current Reports on Form 8-K, filed with the SEC on January 5, 2021 (as amended on January 5, 2021), February 16, 2021, March 11, 2021, April 7, 2021,
April 21, 2021, June 16, 2021, June 17, 2021, August 6, 2021, August 13, 2021, September 3, 2021, October 4, 2021, October 26, 2021, January 5, 2022 and January 18, 2022;
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•
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the portions of the Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 30, 2021, that are incorporated
by reference into Part III of our Annual Report on Form 10-K for the year ended December 31, 2020; and
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•
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the description of our common stock contained in our Registration Statement on Form 8-A (File No. 333-228849), filed under
Section 12(b) of the Exchange Act on February 1, 2019, including any subsequent amendment or report filed for the purpose of amending
such description.
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Any information in any of the foregoing documents
will automatically be deemed to be modified or superseded to the extent that information in this prospectus or in a later filed document
that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We also incorporate by reference any future filings
(other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related
to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act until we file a post-effective amendment that indicates the termination of the offering of the securities covered
by this prospectus and will become a part of this prospectus from the date that such documents are filed with the SEC. Information in
such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will
automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated
or deemed to be incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier
statements.
We will furnish without charge to each person, including
any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated
by reference, including exhibits to these documents. Any such request may be made by writing us at Romeo Power, Inc., 4380 Ayers Avenue,
Vernon, California 90058 Attn: Corporate Secretary or telephoning us at (833) 467-2237.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth an estimate of the
fees and expenses, other than the underwriting discounts and commissions, payable by us in connection with the issuance and distribution
of the securities being registered. All the amounts shown are estimates.
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SEC registration fee
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$
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32,445
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Accounting fees and expenses
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*
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Legal fees and expenses
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*
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Transfer agent and registrar fees and expenses
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*
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Trustee fees and expenses
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*
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Blue sky fees and expenses (including legal fees)
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*
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FINRA filing fee (if applicable)
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*
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Printing and miscellaneous fees and expenses
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*
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Total
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$
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*
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*
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The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time. An estimate
of the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the applicable
prospectus supplement.
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Item 15.
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Indemnification of Directors and Officers
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Section 145(a) of the DGCL provides, in general,
that a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right
of the corporation), because he or she 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, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general,
that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor because the person 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, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise, 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 he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability
but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses that the
Court of Chancery or other adjudicating court shall deem proper.
Section 145(g) of the DGCL provides, in
general, that a corporation may 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, 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 or her status as such, whether or not the corporation would have
the power to indemnify the person against such liability under Section 145 of the DGCL.
Additionally, our second amended and restated certificate
of incorporation eliminates our directors’ liability to the fullest extent permitted under the DGCL. The DGCL provides that directors
of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability:
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·
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for any transaction from which the director derives an improper personal
benefit;
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·
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for any act or omission not in good faith or that involves intentional misconduct
or a knowing violation of law;
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·
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for any unlawful payment of dividends or redemption of shares; or
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·
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for any breach of a director’s duty of loyalty to the corporation or
its stockholders.
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If the DGCL is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the liability of our directors will be eliminated or limited
to the fullest extent permitted by the DGCL, as so amended.
In addition, we have entered into separate indemnification
agreements with our directors and officers. These agreements, among other things, require us to indemnify our directors and officers for
certain expenses, including attorneys’ fees, judgments, liabilities, fines, penalties and settlement amounts incurred by a director
or officer in any action or proceeding arising out of their services as one of our directors or officers or any other company or enterprise
to which the person provides services at our request.
We maintain a directors’ and officers’
insurance policy pursuant to which our directors and officers are insured against liability for actions taken in their capacities as directors
and officers.
Any underwriting agreement that we may enter into
will likely provide for indemnification of the company, our directors, our officers who sign the registration statement and our controlling
persons, if any, for some liabilities, including liabilities arising under the Securities Act.
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Incorporated
by Reference
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Exhibit
No.
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Exhibit Description
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Form
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Filing
Date/Period
End Date
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Exhibit
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Filed
Herewith
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1.1*
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Form of Underwriting
Agreement
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2.1#
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Agreement
and Plan of Merger, dated as of October 5, 2020, by and among RMG Acquisition Corp., RMG Merger Sub, Inc. and Romeo Systems, Inc.
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8-K
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10/5/2020
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2.1
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2.2#
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Amendment
No. 1 to Agreement and Plan of Merger, dated as of November 18, 2020, by and among RMG Acquisition Corp., RMG Merger Sub, Inc. and
Romeo Systems, Inc.
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S-4
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12/4/2020
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2.2
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3.1
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Second
Amended and Restated Certificate of Incorporation of Romeo Power, Inc.
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8-K
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1/5/2021
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3.1
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3.2
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Amended
and Restated Bylaws of Romeo Power, Inc.
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8-K
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1/5/2021
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3.2
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4.1
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Specimen
Common Stock Certificate of Romeo Power, Inc.
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8-K
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1/5/2021
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4.1
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4.2
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Form
of Senior Indenture.
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X
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4.3
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Form
of Subordinated Indenture.
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X
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*
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To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference, if applicable.
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#
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Schedule and exhibits to this Exhibit omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally
a copy of any omitted schedule or exhibit to the SEC upon request.
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+
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To be filed by amendment or pursuant to Trust Indenture Act
Section 305(b)(2), if applicable.
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(a) The undersigned registrant hereby
undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any
prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect
in the prospectus any facts or events arising after the effective date of 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 SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include
any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) 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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the
purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for the
purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the
purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its
securities provided by or on behalf of an undersigned registrant; and
(iv) Any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the 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, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant
hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2)
of the Trust Indenture Act.
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 Vernon, State of California, on January 26, 2022.
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ROMEO POWER, INC.
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By:
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/s/ Susan S. Brennan
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Susan S. Brennan
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Susan S. Brennan and Kerry A. Shiba, and each of them acting individually,
as his or her true and lawful attorneys-in-fact and agents, with full power of each to act alone, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this
registration statement (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and generally to do all such things in their names and behalf in their
capacities as officers and directors to enable Romeo Power, Inc. to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully
for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact
and agents, or any of them or their or his or her substitutes or resubstitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
Susan S. Brennan
Susan S. Brennan
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President,
Chief Executive Officer and Member of
the Board of Directors
(Principal Executive Officer)
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|
January
26, 2022
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/s/
Kerry A. Shiba
Kerry A. Shiba
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|
Chief Financial
Officer
(Principal Financial Officer)
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January
26,
2022
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/s/
Yun Han
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Chief
Accounting Officer
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January 26, 2022
|
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Yun Han
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(Principal Accounting Officer)
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/s/
Lauren Webb
Lauren Webb
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Director
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January
24,
2022
|
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/s/
Robert Mancini
Robert Mancini
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Director
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January
26,
2022
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/s/
Philip Kassin
Philip Kassin
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Director
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January
26,
2022
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/s/
Donald Gottwald
Donald Gottwald
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Director
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January
26,
2022
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Signature
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Title
|
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Date
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/s/
Laurene Horiszny
Laurene Horiszny
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Director
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January
26,
2022
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/s/
Timothy Stuart
Timothy Stuart
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Director
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January
26,
2022
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/s/
Paul Williams
Paul Williams
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Director
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January
26,
2022
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RMG Acquisition (NYSE:RMG)
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