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As filed with the Securities and Exchange Commission on May 4,
2022. |
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Registration No.
333- |
i
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________________________
Sunrun Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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26-2841711 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
225 Bush Street, Suite 1400
San Francisco, California 94104
(Address of principal executive offices and Zip Code)
(415) 580-6900
(Registrant’s telephone number, including area code)
________________________________________________
Mary Powell
Chief Executive Officer
Sunrun Inc.
225 Bush Street, Suite 1400
San Francisco, California 94104
(415) 580-6900
(Name, address, including zip code and telephone number, including
area code, of agent for service)
________________________________________________
Copies to:
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Calise Y. Cheng
Jean Park
Anitha Anne
Cooley LLP
3175 Hanover Street
Palo Alto, California 94304
(650) 843-5000
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Jeanna Steele
Sundance Banks
Lucy Jensen
Sunrun Inc.
225 Bush Street, Suite 1400
San Francisco, California 94104
(415) 580-6900
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________________________________________________
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this Registration
Statement.
________________________________________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box:
☐
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, as amended, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box:
☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering.
☐
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box.
☒
If this Form is a post-effective amendment 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.
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Smaller reporting company |
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Emerging growth company |
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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.
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Prospectus
Common Stock
Preferred Stock
Debt Securities
Warrants
________________________________________________
From time to time, we or selling securityholders may offer and sell
any combination of the securities described in this prospectus,
either individually or in combination with other securities in one
or more offerings. We or selling securityholders may also offer
securities as may be issuable upon conversion, redemption,
repurchase, exchange or exercise of any securities registered
hereunder, including any applicable antidilution
provisions.
This prospectus provides a general description of the securities we
may offer. Each time we or selling securityholders offer securities
pursuant to this prospectus, we will provide specific terms of
these offerings and the securities offered in a supplement to this
prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these
offerings. The prospectus supplement and any related free writing
prospectus may also add, update or change information contained in
this prospectus. You should carefully read this prospectus, the
applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference,
before you invest in any of the securities being
offered.
Our common stock is listed on The NASDAQ Global Select Market under
the symbol “RUN.” On May 3, 2022, the last reported sale price of
our common stock was $22.94 per share. The applicable prospectus
supplement will contain information, where applicable, as to any
other listing on The NASDAQ Global Select Market or any securities
market or other exchange of the securities, if any, covered by the
prospectus supplement.
Investing in our securities involves a high degree of risk. You
should review carefully the risks and uncertainties described under
the heading “Risk Factors” contained in the applicable prospectus
supplement and any related free writing prospectus we have
authorized for use in connection with a specific offering, and
under similar headings in the other documents that are incorporated
by reference into this prospectus.
This prospectus may not be used to consummate a sale of any
securities unless accompanied by a prospectus
supplement.
We may sell these securities directly to investors, through agents
designated from time to time or to or through underwriters or
dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section
titled “Plan of Distribution” in this prospectus. If any agents or
underwriters are involved in the sale of any securities with
respect to which this prospectus is being delivered, the names of
such agents or underwriters and any applicable fees, commissions,
discounts or options to purchase additional shares will be set
forth in a prospectus supplement. The price to the public of such
securities and the net proceeds we expect to receive from such sale
will also be set forth in a prospectus supplement. Unless the
applicable prospectus supplement provides otherwise, we will not
receive any proceeds from the sale of securities by selling
securityholders.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is May 4, 2022
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic registration statement on
Form S-3 that we filed with the Securities and Exchange Commission,
or the SEC, utilizing a “shelf” registration process as a
“well-known seasoned issuer” as defined in Rule 405 under the
Securities Act of 1933, as amended, or the Securities Act. Under
this shelf registration process, we or selling securityholders may
offer and sell any combination of the securities described in this
prospectus, either individually or in combination with other
securities, in one or more offerings. There is no limit on the
aggregate amount of the securities that we or selling
securityholders may offer pursuant to the registration statement of
which this prospectus is a part. This prospectus provides you with
a general description of the securities we or selling
securityholders may offer.
Each time we or selling securityholders sell securities under this
prospectus, we will provide a prospectus supplement that will
contain 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 information contained in this prospectus
or in any documents that we have incorporated by reference into
this prospectus. If there is any inconsistency between the
information in this prospectus and the applicable prospectus
supplement or free writing prospectus, you should rely on the
prospectus supplement or free writing prospectus, as applicable.
You should read this prospectus, any applicable prospectus
supplement and any related free writing prospectus, together with
the information incorporated herein by reference as described under
the heading “Incorporation of Certain Information by Reference,”
before investing in any of the securities offered.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither we, nor any agent, underwriter or dealer has authorized any
person to give any information or to make any representation other
than those contained or incorporated by reference in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus prepared by or on behalf of us or to which
we have referred you. This prospectus, any applicable supplement to
this prospectus or any related free writing prospectus does not
constitute an offer to sell or the solicitation of an offer to buy
any securities other than the registered securities to which they
relate, nor does this prospectus, any applicable supplement to this
prospectus or any related free writing prospectus constitute an
offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
You should not assume that the information contained 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 is correct on any date subsequent
to the date of the document incorporated by reference, even though
this prospectus, any applicable prospectus supplement or any
related free writing prospectus is delivered, or securities are
sold, on a later date.
This prospectus and the information incorporated herein by
reference contain 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
heading “Where You Can Find Additional Information.”
Unless the context otherwise requires, the terms “Sunrun,”
“company,” “our,” “us,” and “we” in this prospectus refer to Sunrun
Inc. and where appropriate our consolidated subsidiaries.
The Sunrun design logo, “Sunrun,” and our other registered or
common law trademarks, service marks, or trade names appearing in
this prospectus are the property of Sunrun Inc. Solely for
convenience, our trademarks, tradenames, and service marks referred
to in this prospectus appear without the ®, ™,
and SM symbols, but those references are not intended to indicate,
in any way, that we will not assert, to the fullest extent under
applicable law, our rights to these trademarks, tradenames, and
service marks. This prospectus contains additional trademarks,
tradenames, and service marks of other companies that are the
property of their respective owners.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this
prospectus or incorporated by reference in this prospectus. This
summary does not contain all of the information you should consider
before investing in our securities. Before you decide to invest in
our securities, you should carefully read the entire prospectus,
the applicable prospectus supplement and any related free writing
prospectus, including the section titled “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 consolidated
financial statements, and the exhibits to the registration
statement of which this prospectus is a part.
SUNRUN INC.
Our mission is to provide our customers with clean, affordable
solar energy and storage, and a best-in-class customer experience.
In 2007, we pioneered the residential solar service model, creating
a low-cost solution for customers seeking to lower their energy
bills. By removing the high initial cost and complexity of cash
system sales that used to define the residential solar industry, we
have fostered the industry’s rapid growth and exposed an enormous
market opportunity. Our relentless drive to increase the
accessibility of solar energy is fueled by our enduring vision: to
create a planet run by the sun.
On October 8, 2020, we completed the acquisition of Vivint Solar,
Inc. ("Vivint Solar") a leading full-service residential solar
provider in the United States, at an estimated purchase price of
$5.0 billion, pursuant to an Agreement and Plan of Merger, dated as
of July 6, 2020, by and among Sunrun, Vivint Solar and Viking
Merger Sub, Inc., a Delaware corporation and direct wholly owned
subsidiary of the Company.
We are engaged in the design, development, installation, sale,
ownership and maintenance of residential solar energy systems
(“Projects”) in the United States. We provide clean, solar energy
typically at savings compared to traditional utility energy. Our
primary customers are residential homeowners. We also offer battery
storage along with solar energy systems to our customers in select
markets and sell our services to certain commercial developers
through our multi-family and new homes offerings. After inventing
the residential solar service model and recognizing its enormous
market potential, we have built the infrastructure and capabilities
necessary to rapidly acquire and serve customers in a low-cost and
scalable manner. Today, our scalable operating platform provides us
with a number of unique advantages. First, we are able to drive
distribution by marketing our solar service offerings through
multiple channels, including our diverse partner network and
direct-to-consumer operations. This multi-channel model supports
broad sales and installation capabilities, which together allow us
to achieve capital-efficient growth. Second, we are able to provide
differentiated solutions to our customers that, combined with a
great customer experience, we believe will drive meaningful margin
advantages for us over the long term as we strive to create the
industry’s most valuable and satisfied customer base.
Selected Risks Affecting Our Business
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 under the heading
“Risk Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and discussed under the
sections titled “Risk Factors,” “Selected Risks Affecting Our
Business,” “Risk Factor Summary,” or similar title contained in our
most recent Annual Report on Form 10-K, as may be updated by our
subsequent Quarterly Reports on Form 10-Q and other filings we make
with the SEC, 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.
Corporate Information
We were formed in 2007 as a California limited liability company
and converted in 2008 into a Delaware corporation. Our principal
executive office is located at 225 Bush Street, Suite 1400, San
Francisco, California 94104, and our telephone number is (415)
580-6900. Our corporate website address is www.sunrun.com. We do
not incorporate by reference into this prospectus the information
on, or accessible through, our website, and you should not consider
it as part of this prospectus.
The
Sunrun design logo, “Sunrun” and our other registered or common law
trademarks, service marks, or trade names appearing in this
prospectus are the property of Sunrun Inc. Solely for convenience,
our trademarks, tradenames, and service marks referred to in this
prospectus appear without the ®, ™,
and SM symbols, but those
references are not intended to indicate, in any way, that we will
not assert, to the fullest extent under applicable law, our rights
to these trademarks, tradenames, and service marks. This prospectus
contains additional trademarks, tradenames, and service marks of
other companies that are the property of their respective
owners.
Description of Securities
We or selling securityholders may offer shares of our common stock
and preferred stock, various series of debt securities and/or
warrants to purchase any of such securities, either individually or
in combination with other securities, 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 at the time of any offering. We may also offer common
stock, preferred stock and/or debt securities upon the exercise of
warrants. This prospectus provides you with a general description
of the securities we or selling securityholders may offer. Each
time we or selling securityholders 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:
•designation
or classification;
•aggregate
principal amount or aggregate offering price;
•maturity
date, if applicable;
•original
issue discount, if any;
•rates
and times of payment of interest or dividends, if any;
•redemption,
conversion, exercise, exchange or sinking fund terms, if
any;
•ranking;
•restrictive
covenants, if any;
•voting
or other rights, if any;
•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
•important
U.S. federal income tax considerations.
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.
We or selling securityholders may sell the securities directly to
investors or to or through underwriters, dealers or agents. We, and
our underwriters or agents, reserve the right to accept or reject
all or part of any proposed purchase of securities. If we or
selling securityholders do offer securities to or through agents or
underwriters, we will include in the applicable prospectus
supplement:
•the
names of those agents or underwriters;
•applicable
fees, discounts and commissions to be paid to them;
•details
regarding the option to purchase additional shares or other
options, if any; and
•the
estimated net proceeds to us.
This prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
Common Stock
We may issue shares of our common stock from time to time. The
holders of our common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders
and do not have cumulative voting rights. Subject to preferences
that may be applicable to any outstanding shares of preferred
stock, the holders of our common stock are entitled to receive
ratably such dividends as may be declared by our board of directors
out of legally available funds. Upon our liquidation, dissolution
or winding up, holders of our common stock are entitled to share
ratably in all assets remaining after payment of liabilities and
the liquidation preferences of any then outstanding shares of
preferred stock. Our common stock does not carry any preemptive
rights enabling a holder to subscribe for, or receive shares of,
any class of our common stock or any other securities convertible
into shares of any class of our common stock, or any redemption
rights. In this prospectus, we have summarized certain general
features of our common stock under the heading “Description of
Capital Stock—Common Stock.” We urge you to read the applicable
prospectus supplement (and any free writing prospectus that we may
authorize to be provided to you) related to any common stock being
offered.
Preferred Stock
We may issue shares of our preferred stock from time to time, in
one or more series. Under our amended and restated certificate of
incorporation, our board of directors has the authority, without
further action by the stockholders (unless such stockholder action
is required by applicable law or the rules of any stock exchange or
market on which our securities are then traded), to determine the
designations, voting powers, preferences and rights of each series
of the preferred stock, as well as the qualifications, limitations
or restrictions thereof, including dividend rights, conversion
rights, terms of redemption, liquidation preferences, sinking fund
terms and the number of shares constituting any series or the
designation of any series, any or all of which may be greater than
the rights of the common stock. Any convertible preferred stock we
may issue will be convertible into our common stock or our other
securities. Conversion may be mandatory or at the holder’s option
and would be at prescribed conversion rates.
If we sell any series of preferred stock under this prospectus, we
will fix the designations, voting powers, preferences and rights of
such series of preferred stock, as well as the qualifications,
limitations or restrictions thereof, in the certificate of
designation relating to that series. We will file as an exhibit 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 any certificate of designation that describes the
terms of the series of preferred stock that we are offering before
the issuance of the related series of preferred stock. In this
prospectus, we have summarized certain general features of the
preferred stock under “Description of Capital Stock—Preferred
Stock.” We urge you to read the applicable prospectus supplement
(and any free writing prospectus that we may authorize to be
provided to you) related to the series of preferred stock being
offered, as well as the complete certificate of designation that
contains the terms of the applicable series of preferred
stock.
Debt Securities
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. The senior debt securities will rank
equally with any other unsecured and unsubordinated debt. The
subordinated debt securities will be subordinate and junior in
right of payment, to the extent and in the manner described in the
instrument governing the debt, to all of our senior indebtedness.
Convertible or exchangeable debt securities will be convertible
into or exchangeable for our common stock or preferred stock.
Conversion or exchange may be mandatory our optional (at our option
or the holder’s option) and would be at prescribed conversion or
exchange rates.
The debt securities issued under this prospectus will be issued
under one or more documents called indentures, which are contracts
between us and a national banking association or other eligible
party, as trustee. In this prospectus, we have summarized certain
general features of the debt securities under the heading
“Description of Debt Securities.” We urge you, however, to read the
applicable prospectus supplement (and any free writing prospectus
that we may authorize to be provided to you) related to the series
of debt securities being offered, as well as the complete
indentures and supplemental indentures that contain the terms of
the debt securities. A form of indenture has been filed as an
exhibit 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.
Warrants
We may issue warrants for the purchase of common stock, preferred
stock and/or debt securities in one or more series. We may issue
warrants independently or together with common stock, preferred
stock and/or debt securities, and the warrants may be attached to
or separate from these securities. In this prospectus, we have
summarized certain general features of the warrants under the
heading “Description of Warrants.” We urge you, however, to read
the applicable prospectus supplement (and any related free writing
prospectus that we may authorize to be provided to you) related to
any particular series of warrants being offered, as well as the
complete warrant agreements and warrant certificates that contain
the terms of the warrants. We have filed forms of the warrant
agreements and forms of warrant certificates containing the terms
of the warrants that we may offer as exhibits to the registration
statement of which this prospectus is a part. 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.
Selling Securityholders
Selling securityholders are persons or entities that, directly or
indirectly, have acquired or will from time to time acquire from
us, our securities. Information about selling securityholders, if
any, will be set forth in a prospectus supplement. See “Selling
Securityholders” in this prospectus.
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 for working capital and general corporate purposes,
including deployment of additional solar systems, sales and
marketing activities, research and development activities, general
and administrative matters, repayment of debt, other business
opportunities and capital expenditures. We may also use a portion
of the net proceeds to acquire or invest in businesses, products
and technologies that are complementary to our own, although we
have no current commitments or agreements with respect to any
acquisitions or investments. See “Use of Proceeds” in this
prospectus. Unless the applicable prospectus supplement provides
otherwise, we will not receive any of the proceeds from the sale of
our securities by selling securityholders.
Listing on The NASDAQ Global Select Market
Our common stock is listed on The NASDAQ Global Select Market under
the symbol “RUN.” The applicable prospectus supplement will contain
information, where applicable, as to other listings, if any, on the
NASDAQ Global Select Market or any other securities market or other
exchange of the securities covered by the applicable prospectus
supplement.
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 under the heading
“Risk Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and discussed under the
section titled “Risk Factors” contained in our most recent Annual
Report on Form 10-K, as may be updated by our subsequent Quarterly
Reports on Form 10-Q and other filings we make with the SEC, 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. See “Where You Can Find Additional Information” and
“Incorporation of Certain Information by Reference.” 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 occurs, our business, financial condition,
results of operations or cash flow could be seriously harmed. This
could cause the trading price of our securities to decline,
resulting in a loss of all or part of your investment. Please also
read carefully the section below titled “Special Note Regarding
Forward-Looking Statements.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, and the documents incorporated in this prospectus
by reference, contain forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended (the
"Securities Act"), Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and the Private Securities
Litigation Reform Act of 1995, which statements involve substantial
risks and uncertainties. These statements are based on our
management’s current beliefs, expectations and assumptions about
future events, conditions, and results and on information currently
available to us. Discussions containing these forward-looking
statements may be found, among other places, in the sections titled
“Business,” “Risk Factors” and “Management’s Discussion and
Analysis of Financial Condition and Results of Operations”
incorporated by reference from our most recent Annual Report on
Form 10-K and our most recent Quarterly Report on Form 10-Q, as
well as any amendments thereto, filed with the SEC.
In some cases, you can identify forward-looking statements by
terminology such as “aim,” “anticipate,” “assume,” “believe,”
“contemplate,” “continue,” “could,” “design,” “due,” “estimate,”
“expect,” “goal,” “intend,” “may,” “objective,” “plan,” “predict,”
“project,” “positioned,” “potential,” “seek,” “should,” “target,”
“will,” “would” or the negative or plural of those terms, and
similar expressions intended to identify statements about the
future, although not all forward-looking statements contain these
words. These forward-looking statements involve known and unknown
risks, uncertainties and other factors that may cause our actual
results, levels of activity, performance or achievements to be
materially different from the information expressed or implied by
these statements. Forward-looking statements contained in this
prospectus include, but are not limited to, statements
about:
•the
potential effects of the COVID-19 pandemic, including its variants,
on our business and operations, results of operations and financial
position;
•the
expected benefits and potential value created by the merger with
Vivint Solar for our stockholders;
•the
inherent risks, costs and uncertainties associated with integrating
the businesses in the merger with Vivint Solar successfully and
risks of not achieving all or any of the anticipated benefits of
the merger with Vivint Solar, or the risk that the anticipated
benefits of the acquisition may not be fully realized or take
longer to realize than expected;
•the
availability of rebates, tax credits and other financial
incentives, and decreases to federal solar tax
credits;
•determinations
by the Internal Revenue Service of the fair market value of our
solar energy systems;
•the
retail price of utility-generated electricity or electricity from
other energy sources;
•regulatory
and policy development and changes;
•our
ability to manage our supply chains and distribution channels and
the impact of natural disasters and other events beyond our
control, such as the COVID-19 pandemic;
•our
industry’s, and specifically our, continued ability to manage costs
(including, but not limited to, equipment costs) associated with
solar service offerings;
•our
strategic partnerships and investments and the expected benefits of
such partnerships and investments;
•our
ability to realize the anticipated benefits of past or future
investments, strategic transactions, or acquisitions, and risk that
the integration of these acquisitions may disrupt our business and
management;
•the
sufficiency of our cash, investment fund commitments and available
borrowings to meet our anticipated cash needs;
•our
need and ability to raise capital, refinance existing debt, and
finance our operations and solar energy systems from new and
existing investors;
•the
potential impact of interest rates on our interest
expense;
•our
business plan and our ability to effectively manage our growth,
including our rate of revenue growth;
•our
ability to further penetrate existing markets, expand into new
markets and our expectations regarding market growth (including,
but not limited to, expected cancellation rates);
•our
expectations concerning relationships with third parties, including
the attraction, retention and continued existence of qualified
solar partners;
•the
impact of seasonality on our business;
•our
investment in research and development and new product
offerings;
•our
ability to protect our intellectual property and customer data, as
well as to maintain our brand;
•the
willingness of and ability of our solar partners to fulfill their
respective warranty and other contractual obligations;
•our
ability to renew or replace expiring, cancelled or terminated
Customer Agreements at favorable rates or on a long-term
basis;
•the
ability of our solar energy systems to operate or deliver energy
for any reason, including if interconnection or transmission
facilities on which we rely become unavailable;
•our
expectations regarding certain performance objectives and the
renewal rates and purchase value of our solar energy systems after
expiration of our Customer Agreements;
•the
calculation of certain of our key financial and operating metrics
and accounting policies; and
•our
ability to capitalize on the market opportunities created by the
electrification of the U.S. economy with renewable
energy.
These statements involve risks, uncertainties and other factors
that may cause our actual results, levels of activity, performance,
or achievements to be materially different from the information
expressed or implied by these forward-looking statements. Moreover,
we operate in a very competitive and rapidly changing environment,
and new risks emerge from time to time. It is not possible for our
management to predict all risks, nor can we assess the impact of
all factors on our business or the extent to which any factor, or
combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statements
we may make. These risks and uncertainties may be amplified by the
ongoing COVID-19 pandemic, which has caused significant economic
uncertainty and negative impacts on capital and credit markets. The
extent to which the COVID-19 pandemic impacts our business,
operations, and financial results, including the duration and
magnitude of such effects, will depend on numerous factors, many of
which are unpredictable, including, but not limited to, the
duration and spread of the pandemic, its severity, the actions to
contain the pandemic or treat its impact, and how quickly and to
what extent normal economic and operating conditions can resume.
Although we believe that we have a reasonable basis for each
forward-looking statement contained in this prospectus, we caution
you that these statements are based on a combination of facts and
factors currently known by us and our projections of the future,
about which we cannot be certain.
You should refer to the “Risk Factors” section of this prospectus,
applicable prospectus supplements, any related free writing
prospectus that we may authorize to be provided to you, our most
recent Annual Report on Form 10-K, and our most recent Quarterly
Report on Form 10-Q, as updated by our subsequent filings, for a
discussion of other important factors that may cause our actual
results to differ materially from those expressed or implied by our
forward-looking statements. As a result of these factors, we cannot
assure you that the forward-looking statements in this prospectus
will prove to be accurate. In addition, statements that “we
believe” and similar statements reflect our beliefs and opinions on
the relevant subject. These statements are based upon information
available to us as of the date of this prospectus, and although we
believe such information forms a reasonable basis for such
statements, such
information may be limited or incomplete, and our statements should
not be read to indicate that we have conducted a thorough inquiry
into, or review of, all potentially available relevant information.
These statements are inherently uncertain, and investors are
cautioned not to unduly rely upon these statements. Furthermore, if
our forward-looking statements prove to be inaccurate, the
inaccuracy may be material. In light of the significant
uncertainties in these forward-looking statements, you should not
regard these statements as a representation or warranty by us or
any other person that we will achieve our objectives and plans in
any specified time frame, or at all. We undertake no obligation to
publicly update any forward-looking statements, whether as a result
of new information, future events or otherwise, except as required
by law.
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 offered hereby, if any,
for working capital and general corporate purposes, including sales
and marketing activities, research and development activities,
general and administrative matters, repayment of debt, other
business opportunities and capital expenditures. We may also use a
portion of the net proceeds to acquire or invest in businesses,
products and technologies that are complementary to our own,
although we have no current commitments or agreements with respect
to any acquisitions or investments. We will set forth in the
applicable prospectus supplement or free writing prospectus our
intended use for the net proceeds received from the sale of any
securities sold pursuant to the applicable prospectus supplement or
free writing prospectus.
Unless the applicable prospectus supplement provides otherwise, we
will not receive any of the proceeds from the sale of our
securities by selling securityholders.
DESCRIPTION OF CAPITAL STOCK
General
The following summary description of our capital stock is based on
the provisions of our amended and restated certificate of
incorporation, as well as our amended and restated bylaws and the
applicable provisions of the Delaware General Corporation Law. This
information is qualified entirely by reference to the applicable
provisions of our amended and restated certificate of
incorporation, amended and restated bylaws and the Delaware General
Corporation Law. For information on how to obtain copies of our
amended and restated certificate of incorporation and amended and
restated bylaws, which are exhibits to the registration statement
of which this prospectus is a part, see “Where You Can Find
Additional Information.”
Our amended and restated certificate of incorporation provides for
common stock, and it authorizes shares of designated preferred
stock, the rights, preferences and privileges of which may be
designated from time to time by our board of
directors.
Our authorized capital stock consists of 2,200,000,000 shares of
capital stock,
$0.0001 par value per share, of which:
•2,000,000,000
shares are designated as common stock; and
•200,000,000
shares are designated as preferred stock.
Common Stock
Dividend Rights
Subject to preferences that may apply to any shares of preferred
stock outstanding at the time, the holders of our common stock are
entitled to receive dividends out of funds legally available if our
board of directors, in its discretion, determines to issue
dividends and then only at the times and in the amounts that our
board of directors may determine.
Voting Rights
Holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of stockholders. We have
not provided for cumulative voting for the election of directors in
our amended and restated certificate of incorporation. Our amended
and restated certificate of incorporation establishes a classified
board of directors that is divided into three classes with
staggered three-year terms. Only the directors in one class are
subject to election by a plurality of the votes cast at each annual
meeting of our stockholders, with the directors in the other
classes continuing for the remainder of their respective three-year
terms.
No Preemptive or Similar Rights
Our common stock are not entitled to preemptive rights and are not
subject to conversion, redemption, or sinking fund
provisions.
Right to Receive Liquidation Distributions
If we become subject to a liquidation, dissolution,
or winding-up, the assets legally available for
distribution to our stockholders would be distributable ratably
among the holders of our common stock and any participating
preferred stock outstanding at that time, subject to prior
satisfaction of all outstanding debt and liabilities and the
preferential rights of and the payment of liquidation preferences,
if any, on any outstanding shares of preferred stock.
Fully Paid and Non-Assessable
All of the outstanding shares of our common stock are fully paid
and non-assessable.
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.
Preferred Stock
Pursuant to our amended and restated certificate of incorporation,
our board of directors has the authority, without further action by
the stockholders, to issue from time to time shares of preferred
stock in one or more series. Our board of directors may designate
the rights, preferences, privileges and restrictions of the
preferred stock, including dividend rights, conversion rights,
voting rights, redemption rights, liquidation preference, sinking
fund terms, and the number of shares constituting any series or the
designation of any series. The issuance of preferred stock could
have the effect of restricting dividends on our common stock,
diluting the voting power of our common stock, impairing the
liquidation rights of our common stock, or delaying, deterring, or
preventing a change in control. Such issuance could have the effect
of decreasing the market price of our common stock.
No shares of preferred stock are currently outstanding as of the
effective date
of the registration statement of which this prospectus is a
part.
Anti-Takeover Effects of Delaware Law and Our Certificate of
Incorporation and Bylaws
The provisions of our amended and restated certificate of
incorporation and our amended and restated bylaws, which are
summarized below, may have the effect of delaying or discouraging
another person from acquiring control of us. These provisions 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 with an unfriendly or unsolicited acquirer outweigh
the disadvantages of discouraging a proposal to acquire us because
negotiation of these proposals could result in an improvement of
their terms.
We are subject to of Section 203 of the Delaware General
Corporation Law. In general, Section 203 prohibits a public
Delaware corporation from engaging in a “business combination” with
an “interested stockholder” for a period of three years after the
date of the transaction in which the person became an interested
stockholder, unless:
•the transaction was approved by the board of directors prior to
the time that the stockholder became an interested
stockholder;
•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 shares owned by directors who are also officers of the
corporation and shares owned by employee stock plans in which
employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
•at or subsequent to the time the stockholder became an interested
stockholder, the business combination was approved by the board of
directors and authorized at an annual or special meeting of the
stockholders, and not by written consent, by the affirmative vote
of at least two-thirds of the outstanding voting stock which is not
owned by the interested stockholder.
In general, Section 203 defines a “business combination” to include
mergers, asset sales and other transactions resulting in financial
benefit to a stockholder and an “interested stockholder” as a
person who, together with affiliates and associates, owns, or
within three years did own, 15% or more of the corporation’s
outstanding voting stock. These provisions may have the effect of
delaying, deferring or preventing changes in control of our
company.
Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws
Our amended and restated certificate of incorporation and our
amended and restated bylaws include a number of provisions that
could delay or discourage an unsolicited takeover or a change in
control or changes in our board of directors or management team,
including the following:
Board of Directors Vacancies.
Our amended and restated certificate of incorporation and amended
and restated bylaws authorize only our board of directors to fill
vacant directorships, including newly created seats. In addition,
the number of directors constituting our board of directors is be
permitted to be set only by a resolution adopted by a majority vote
of our entire board of directors. These provisions prevent a
stockholder from increasing the size of our board of directors and
then gaining control of our board of directors by filling the
resulting vacancies with its own nominees. This makes it more
difficult to change the composition of our board of directors and
promotes continuity of management.
Classified Board.
Our amended and restated certificate of incorporation and amended
and restated bylaws provide that our board of directors is
classified into three classes of directors. A third party may be
discouraged from making a tender offer or otherwise attempting to
obtain control of us as it is more difficult and time consuming
for
stockholders to replace a majority of the directors on a classified
board of directors. See the section titled “Management—Classified
Board of Directors.”
Directors Removed Only for Cause.
Our amended and restated certificate of incorporation provides that
stockholders may remove directors only for cause.
Stockholder Action; Special Meeting of
Stockholders.
Our amended and restated certificate of incorporation provides that
our stockholders may not take action by written consent, but may
only take action at annual or special meetings of our stockholders.
As a result, a holder controlling a majority of our capital stock
is not able to amend our amended and restated bylaws or remove
directors without holding a meeting of our stockholders called in
accordance with our amended and restated bylaws. Our amended and
restated bylaws further provide that special meetings of our
stockholders may be called only by a majority of our board of
directors, the chairman of our board of directors, our Chief
Executive Officer or our President, thus preventing a stockholder
from calling a special meeting. These provisions might delay the
ability of our stockholders to force consideration of a proposal or
for stockholders controlling a majority of our capital stock to
take any action, including the removal of directors.
Advance Notice Requirements for Stockholder Proposals and Director
Nominations.
Our amended and restated bylaws provide advance notice procedures
for stockholders seeking to bring business before our annual or
special meetings of stockholders or to nominate candidates for
election as directors at our annual or special meetings of
stockholders. Our amended and restated bylaws also specify certain
requirements regarding the form and content of a stockholder’s
notice. These provisions might preclude our stockholders from
bringing matters before our annual or special meetings of
stockholders or from making nominations for directors at our annual
or special meetings of stockholders if the proper procedures are
not followed. We expect that these provisions may also discourage a
potential acquirer from conducting a solicitation of proxies to
elect the acquirer’s own slate of directors or otherwise attempting
to obtain control of our company.
No Cumulative Voting.
The Delaware General Corporation Law provides that stockholders are
not entitled to cumulate votes in the election of directors unless
a corporation’s certificate of incorporation provides otherwise.
Our amended and restated certificate of incorporation does not
provide for cumulative voting.
Amendment of Charter Provisions.
Any amendment of the above provisions in our amended and restated
certificate of incorporation would require approval by holders of
at least 66 2⁄3% of our then outstanding capital
stock.
Issuance of Undesignated Preferred Stock.
Our board of directors has the authority, without further action by
our stockholders, to designate and issue shares of preferred stock
with rights and preferences, including voting rights, designated
from time to time by our board of directors. The existence of
authorized but unissued shares of undesignated preferred stock
would enable our board of directors to render more difficult or to
discourage an attempt to obtain control of us by means of a merger,
tender offer, proxy contest or other means.
Choice of Forum.
Our bylaws provide that, unless the we consent in writing to the
selection of an alternative forum, the sole and exclusive forum for
(i) any derivative action or proceeding brought on our behalf,
(ii) any action asserting a claim of breach of a fiduciary
duty owed by any of our directors, officers or other employees to
us or our stockholders, (iii) any action asserting a claim
arising pursuant to any provision of the DGCL, or (iv) any
action asserting a claim governed by the internal affairs doctrine,
shall in each case be a state or federal court located within
the state of Delaware, in all cases subject to the court’s having
personal jurisdiction over the indispensable parties named as
defendants. In addition, our bylaws provide that, unless we
consent in writing to the selection of an alternative forum, to the
fullest extent permitted by law, the federal district courts of the
United States of America shall be the sole and exclusive forum for
the resolution of any complaint asserting a cause of action arising
under the Securities Act of 1933, as amended.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
American Stock Transfer & Trust Company, LLC. The transfer
agent and registrar’s address is 6201 15th Avenue, Brooklyn, New
York 11219.
Exchange Listing
Our common stock is listed on The Nasdaq Global Select Market under
the symbol “RUN.”
DESCRIPTION OF DEBT SECURITIES
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. The terms of any debt securities offered
under a prospectus supplement may differ from the terms described
below. Unless the context requires otherwise, whenever we refer to
the 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 the 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, or the Trust Indenture Act. We have filed the form of
indenture as an exhibit 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 summary of material provisions of the debt securities
and the indenture is subject to, and qualified in its 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 indenture that contains
the terms of the debt securities.
General
The indenture does not limit the amount of debt securities that we
may issue. It provides that we may issue debt securities up to the
principal amount that we may authorize and may be in any currency
or currency unit that we may designate. Except for the limitations
on consolidation, merger and sale of all or substantially all of
our assets contained in the indenture, the terms of the indenture
do not contain any covenants or other provisions designed to give
holders of any debt securities protection against changes in our
operations, financial condition or transactions involving
us.
We may issue the debt securities issued under the indenture as
“discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well
as other debt securities that are not issued at a discount, may be
issued with “original issue discount,” or OID, for U.S. federal
income tax purposes because of interest payment and other
characteristics or terms of the debt securities. Material U.S.
federal income tax considerations applicable to debt securities
issued with OID will be described in more detail in any applicable
prospectus supplement.
We will describe in the applicable prospectus supplement the terms
of the series of debt securities being offered,
including:
•the
title of the series of debt securities;
•any
limit upon the aggregate principal amount that may be
issued;
•the
maturity date or dates;
•the
form of the debt securities of the series;
•the
applicability of any guarantees;
•whether
or not the debt securities will be secured or unsecured, and the
terms of any secured debt;
•whether
the debt securities rank as senior debt, senior subordinated debt,
subordinated debt or any combination thereof, and the terms of any
subordination;
•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;
•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;
•our
right, if any, to defer payment of interest and the maximum length
of any such deferral period;
•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;
•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;
•the
denominations in which we will issue the series of debt securities,
if other than denominations of $1,000 and any integral multiple
thereof;
•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;
•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;
•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;
•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;
•additions
to or changes in the covenants applicable to the particular debt
securities being issued, including, among others, the
consolidation, merger or sale covenant;
•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;
•additions
to or changes in or deletions of the provisions relating to
covenant defeasance and legal defeasance;
•additions
to or changes in the provisions relating to satisfaction and
discharge of the indenture;
•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;
•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;
•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;
•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;
•any
restrictions on transfer, sale or assignment of the debt securities
of the series; and
•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.
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 or our 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 or our other
securities that the holders of the series of debt securities
receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable
to a particular series of debt securities, the indenture will not
contain any covenant that restricts our ability to merge or
consolidate, or sell, convey, transfer or otherwise dispose of our
assets as an entirety or substantially as an entirety. However, any
successor to or acquirer of such assets (other than a subsidiary of
ours) must assume all of our obligations under the indenture or the
debt securities, as appropriate.
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:
•if
we fail to pay any installment of interest on any series of debt
securities, as and when the same shall become due and payable, and
such default continues for a period of 90 days; provided, however,
that a valid extension of an interest payment period by us in
accordance with the terms of any indenture supplemental thereto
shall not constitute a default in the payment of interest for this
purpose;
•if
we fail to pay the principal of, or premium, if any, on any series
of debt securities as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous
fund established with respect to such series; provided, however,
that a valid extension of the maturity of such debt securities in
accordance with the terms of any indenture supplemental thereto
shall not constitute a default in the payment of principal or
premium, if any;
•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, requiring the same to be remedied
and stating that such is a notice of default thereunder, from the
trustee or holders of at least 25% in aggregate principal amount of
the outstanding debt securities of the applicable series;
and
•if
specified events of bankruptcy, insolvency or reorganization
occur.
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 of, premium, if any, and accrued
interest, if any, due and payable immediately. If an event of
default specified in the last bullet point above occurs with
respect to us, the principal amount of and accrued interest, if
any, of each issue of debt securities then outstanding shall be due
and payable without any notice or other action on the part of the
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 indenture, if an event of default under
an indenture shall occur and be continuing, 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. 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:
•the
direction so given by the holder is not in conflict with any law or
the applicable indenture; and
•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.
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:
•the
holder has given written notice to the trustee of a continuing
event of default with respect to that series;
•the
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written
request,
•such
holders have offered to the trustee indemnity satisfactory to it
against the costs, expenses and liabilities to be incurred by the
trustee in compliance with the request; and
•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 90 days after the notice, request and
offer.
These limitations do not apply to a suit instituted by a holder of
debt securities if we default in the payment of the principal,
premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee regarding our
compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without the consent of
any holders with respect to specific matters:
•to
cure any ambiguity, defect or inconsistency in the indenture or in
the debt securities of any series;
•to
comply with the provisions described above under “Description of
Debt Securities—Consolidation, Merger or Sale;”
•to
provide for uncertificated debt securities in addition to or in
place of certificated debt securities;
•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, 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 upon us in the indenture;
•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 the
indenture;
•to
make any change that does not adversely affect the interests of any
holder of debt securities of any series in any material
respect;
•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 “Description of Debt Securities—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;
•to
evidence and provide for the acceptance of appointment under any
indenture by a successor trustee; or
•to
comply with any requirements of the SEC in connection with the
qualification of any indenture under the Trust Indenture
Act.
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:
•extending
the fixed maturity of any debt securities of any
series;
•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; or
•reducing
the percentage of debt securities, the holders of which are
required to consent to any amendment, supplement, modification or
waiver.
Discharge
Each indenture provides that we can elect to be discharged from our
obligations with respect to one or more series of debt securities,
except for specified obligations, including obligations
to:
•provide
for payment;
•register
the transfer or exchange of debt securities of the
series;
•replace
stolen, lost or mutilated debt securities of the
series;
•pay
principal of and premium and interest on any debt securities of the
series;
•maintain
paying agencies;
•hold
monies for payment in trust;
•recover
excess money held by the trustee;
•compensate
and indemnify the trustee; and
•appoint
any successor trustee.
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 indenture provides 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, or 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 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 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:
•issue,
register the transfer of, or exchange any debt securities of that
series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of any debt
securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or
•register
the transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part.
Information Concerning the 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 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.
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 of 1939, as
amended, is applicable.
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. 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 in
more detail in the applicable prospectus supplement. 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 have filed forms of the warrant agreements and forms of warrant
certificates containing the terms of the warrants that may be
offered as exhibits to the registration statement of which this
prospectus is a part. 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 are subject to, and qualified
in their entirety by reference to, all 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 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:
•the
offering price and aggregate number of warrants
offered;
•the
currency for which the warrants may be purchased;
•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;
•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;
•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;
•the
effect of any merger, consolidation, sale or other disposition of
our business on the warrant agreements and the
warrants;
•the
terms of any rights to redeem or call the warrants;
•any
provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the
warrants;
•the
dates on which the right to exercise the warrants will commence and
expire;
•the
manner in which the warrant agreements and warrants may be
modified;
•a
discussion of any material or special U.S. federal income tax
considerations of holding or exercising the warrants;
•the
terms of the securities issuable upon exercise of the warrants;
and
•any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have
any of the rights of holders of the securities purchasable upon
such exercise, including:
•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
•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.
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.
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 otherwise specify in the applicable prospectus
supplement, the warrants and any warrant agreements will be
governed by and construed in accordance with the 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.
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 or warrant 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 book-entry 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 holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in
non-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 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 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 holders, of those
securities.
Legal Holders
Our obligations, as well as the obligations of any applicable
trustee and of any third parties employed by us or a trustee, 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 holder,
we have no further responsibility for the payment or notice even if
that holder is required, under agreements with depositary
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 the indenture or for other
purposes. In such an event, we would seek approval only from the
holders, and not the indirect holders, of the securities. Whether
and how the holders contact the indirect holders is up to the
holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you
should check with your own institution to find out:
•the
performance of third-party service providers;
•how
it handles securities payments and notices;
•whether
it imposes fees or charges;
•how
it would handle a request for the holders’ consent, if ever
required;
•whether
and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the
future;
•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
•if
the securities are in book-entry form, how the depositary’s rules
and procedures will affect these matters.
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 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 the section titled
“Special Situations When a Global Security Will Be Terminated” in
this prospectus. As a result of these arrangements, the depositary,
or its nominee, will be the sole registered owner and 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 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 in global form only, 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:
•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;
•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;
•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;
•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;
•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, nor do we or any applicable trustee supervise
the depositary in any way;
•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
•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.
Special Situations When a Global Security Will Be
Terminated
In a few special situations described below, the 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 name, 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, the global security will terminate when the following
special situations occur:
•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;
•if
we notify any applicable trustee that we wish to terminate that
global security; or
•if
an event of default has occurred with regard to securities
represented by that global security and has not been cured or
waived.
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 applicable
prospectus supplement. When a global security terminates, the
depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial
direct holders.
SELLING SECURITYHOLDERS
Information about selling securityholders, if applicable, will be
set forth in a prospectus supplement, in a post-effective amendment
to this registration statement, or in filings we make with the SEC
under the Exchange Act that are incorporated by
reference.
PLAN OF DISTRIBUTION
We or selling securityholders 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 or selling
securityholders 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 or selling
securityholders may distribute securities from time to time in one
or more transactions:
•at
a fixed price or prices, which may be changed;
•at
market prices prevailing at the time of sale;
•at
prices related to such prevailing market prices; or
•at
negotiated prices.
We will describe the terms of the offering of the securities and
the specific plan of distribution in a prospectus supplement or
supplements to this prospectus, any related free writing prospectus
that we may authorize to be provided to you, an amendment to the
registration statement of which this prospectus is a part or other
filings we make with the SEC under the Exchange Act that are
incorporated by reference. Such description may include, to the
extent applicable:
•the
name or names of any underwriters, dealers, agents or other
purchasers;
•the
name or names of the selling securityholders, if any;
•the
purchase price of the securities or other consideration therefor,
and the proceeds, if any, we will receive from the
sale;
•any
options to purchase additional shares or other options under which
underwriters, dealers, agents or other purchasers may purchase
additional securities from us or any selling
securityholders;
•any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
•any
public offering price;
•any
discounts or concessions allowed or reallowed or paid to dealers;
and
•any
securities exchange or market on which the securities may be
listed.
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.
If underwriters are used in the sale, they will acquire the
securities for their own account and may resell the securities from
time to time in one or more transactions at a fixed public offering
price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We or selling securityholders 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 option to purchase
additional shares or other option. If a dealer is used in the sale
of securities, we, a selling securityholder, 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. Any public offering
price and any discounts or concessions allowed or reallowed or paid
to dealers may change from time to time.
We or selling securityholders 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 or selling securityholders may sell securities directly or
through agents we designate from time to time. We will name any
agent involved in the offering and sale of securities, and we will
describe any commissions payable to the agent in the prospectus
supplement. Unless the prospectus supplement states otherwise, the
agent will act on a best-efforts basis for the period of its
appointment.
We may provide agents, dealers and underwriters with
indemnification against civil liabilities, including liabilities
under the Securities Act, or contribution with respect to payments
that the agents or dealers or underwriters may make with respect to
these liabilities. Agents, dealers and underwriters or their
affiliates may engage in transactions with, or perform services
for, us in the ordinary course of business.
Selling securityholders may be deemed to be underwriters under the
Securities Act in connection with the securities they resell and
any profits on the sales may be deemed to be underwriting discounts
and commissions under the Securities Act.
All securities we may offer, other than common stock, will be new
issues of securities with no established trading market. Any
underwriters may make a market in these securities but 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 be granted an option to purchase additional
shares and engage in stabilizing transactions, short-covering
transactions and penalty bids in accordance with Regulation M under
the Exchange Act. An underwriter’s option to purchase additional
shares 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 option to purchase additional shares
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 the
activities at any time.
Any underwriters or dealers or agents that are qualified market
makers on the NYSE may engage in passive market making transactions
in the common stock on the NYSE in accordance with 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 common stock. 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.
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 Cooley LLP.
Additional legal matters may be passed upon for us or any
underwriters, dealers or agents, by counsel that we will name in
the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Sunrun Inc. appearing in
Sunrun Inc.'s Annual Report (Form 10-K) for the year ended December
31, 2021, and the effectiveness of Sunrun Inc.’s internal control
over financial reporting as of December 31, 2021, have been audited
by Ernst & Young LLP, independent registered public accounting
firm, as set forth in their reports thereon included therein, and
incorporated herein by reference. Such financial statements are,
and audited financial statements to be included in subsequently
filed documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such financial
statements and the effectiveness of our internal control over
financial reporting as of the respective dates (to the extent
covered by consents filed with the Securities and Exchange
Commission) given on the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus and any prospectus supplement are part of the
registration statement on Form S-3 we filed with the SEC under the
Securities Act and do not contain all the information set forth or
incorporated by reference in the registration statement. Whenever a
reference is made in this prospectus or any prospectus supplement
to any of our contracts, agreements or other documents, the
reference may not be complete and you should refer to the exhibits
that are a part of the registration statement or the exhibits to
the reports or other documents incorporated by reference into this
prospectus or prospectus supplement for a copy of such contract,
agreement or other document. Because we are subject to the
information and reporting requirements of the Exchange Act, we file
annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the
public over the Internet at the SEC’s website at
http://www.sec.gov. Our Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K, including any
amendments to those reports, and other information that we file
with or furnish to the SEC pursuant to Section 13(a) or 15(d) of
the Exchange Act can also be accessed free of charge on the
Investor section of our website, which is located at
https://investors.sunrun.com. These filings will be available as
soon as reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. Our website address is
https://sunrun.com. Information contained on or accessible through
our website is not a part of this prospectus and is not
incorporated by reference herein, and the inclusion of our website
address in this prospectus is an inactive textual reference
only.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Securities and Exchange Commission (“SEC”) allows us to
“incorporate by reference” information from other documents that we
file with it, which means that we can disclose important
information to you by referring you to those documents. The
information incorporated by reference is considered to be part of
this prospectus. Information in this prospectus supersedes
information incorporated by reference that we filed with the SEC
prior to the date of this prospectus. We incorporate by reference
into this prospectus and the registration statement of which this
prospectus is a part the information or documents listed below that
we have filed with the SEC (File No. 001-38865) and any future
filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act (in each case, other than those documents
or the portions of those documents not deemed to be filed) until
the offering of the securities offered hereby is terminated or
completed:
•our
Definitive Proxy Statement on Schedule 14A,
filed with the SEC on April 20, 2022 (excluding those portions that
are not incorporated by reference into our Annual Report on Form
10-K for the fiscal year ended December 31, 2021);
•the
description of our common stock set forth in our registration
statement on
Form 8-A,
filed with the SEC on July 22, 2015, including any amendments
thereto or reports filed for the purposes of updating this
description.
Notwithstanding the statements in the preceding paragraphs, no
document, report or exhibit (or portion of any of the foregoing) or
any other information that we have “furnished” to the SEC pursuant
to the Exchange Act shall be incorporated by reference into this
prospectus.
Copies of our reports on Form 10-K, Forms 10-Q, Forms 8-K, and
amendments to those reports may also be obtained, free of charge,
electronically through our investor relations website located at
investors.sunrun.com/overview as soon as reasonably practical after
we file such material with, or furnish it to, the SEC.
You may also request a copy of these filings, at no cost, by
writing or telephoning us at the following address or telephone
number:
Sunrun Inc.
225 Bush Street, Suite 1400
San Francisco, California 94104
(415) 580-6900
The information contained in, or that can be accessed through, our
website is not part of, and is not incorporated into, this
prospectus. The inclusion of our website address in this prospectus
is an inactive textual reference only.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus will be deemed
modified, superseded or replaced for purposes of this prospectus to
the extent that a statement contained in this prospectus modifies,
supersedes or replaces such statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
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, except for the FINRA filing fee.
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Amount |
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SEC registration fee
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$ |
(1)(2) |
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Legal fees and expenses
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(2) |
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Accounting fees and expenses
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(2) |
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Transfer agent and registrar fees and expenses
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(2) |
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Trustee fees and expenses
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(2) |
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Blue sky fees and expenses (including legal fees)
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(2) |
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Printing and miscellaneous fees and expenses
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(2) |
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Total
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$ |
(2) |
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(1) In accordance with Rules 456(b) and
457(r), the Registrant is deferring payment of all applicable
registration fees for the securities offered by this
prospectus.
(2) 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.
Item 15. Indemnification of Directors and
Officers.
Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation’s board of directors to grant,
indemnity to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for
liabilities, including reimbursement for expenses incurred, arising
under the Securities Act. Our amended and restated certificate of
incorporation permits indemnification of our directors, officers,
employees and other agents to the maximum extent permitted by the
Delaware General Corporation Law, and our amended and restated
bylaws provide that we will indemnify our directors and officers
and permit us to indemnify our employees and other agents, in each
case to the maximum extent permitted by the Delaware General
Corporation Law.
We have entered into indemnification agreements with our directors
and officers, whereby we have agreed to indemnify our directors and
officers to the fullest extent permitted by law, including
indemnification against expenses and liabilities incurred in legal
proceedings to which the director or officer was, or is threatened
to be made, a party by reason of the fact that such director or
officer is or was a director, officer, employee or agent of Sunrun
Inc., provided that such director or officer acted in good faith
and in a manner that the director or officer reasonably believed to
be in, or not opposed to, the best interest of Sunrun
Inc.
We maintain insurance policies that indemnify our directors and
officers against various liabilities arising under the Securities
Act and the Exchange Act that might be incurred by any director or
officer in his or her capacity as such.
The underwriting agreement that we may enter into (Exhibit 1.1) may
provide for the indemnification by an underwriter of the
registrant’s directors and officers and certain controlling persons
against specified liabilities, including liabilities under the
Securities Act.
Item 16. Exhibits and Financial Statement
Schedules.
(a) Exhibits.
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Incorporated by Reference |
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Number |
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Description of
Document |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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Filed
Herewith |
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1.1*
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Form of Underwriting Agreement. |
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3.1
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10-Q |
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001-37511 |
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3.1 |
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September 15, 2015 |
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3.2
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10-Q |
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001-37511 |
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3.2 |
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September 15, 2015 |
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3.3
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8-K |
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001-37511 |
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3.1 |
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July 10, 2020 |
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4.1
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10-K |
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001-37511 |
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4.5 |
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February 17, 2022 |
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4.2
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S-1 |
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333-205217 |
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4.1 |
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June 25, 2015 |
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4.3*
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Specimen Preferred Stock Certificate and Form of Certificate of
Designation of Preferred Stock. |
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4.4
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X |
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4.5*
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Form of Debt Securities. |
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4.6
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X |
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4.7
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X |
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4.8
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X |
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5.1
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X |
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23.1 |
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X |
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23.2 |
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X |
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24.1 |
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X |
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25.1** |
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Statement of Eligibility of Trustee under the
Indenture. |
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107 |
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X |
* To be filed by amendment or as an exhibit
to a Current Report on Form 8-K and incorporated herein by
reference, if applicable.
** To be filed in accordance with the
requirements of Section 305(b)(2) of the Trust Indenture Act of
1939, as amended, and the applicable rules thereunder.
Item 17. Undertakings.
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 20 percent
change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective
registration statement; and
(iii) 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 the undertakings set forth in paragraphs
(1)(i), (1)(ii) and (1)(iii) above 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 Exchange Act that are incorporated by reference in this
registration statement or are contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act to any purchaser:
(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 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 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 the undersigned registrant; and
(iv) any other communication that is an
offer in the offering made by the undersigned registrant to the
purchaser.
(6) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) 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.
(7) 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.
(8) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
the
City of San Francisco, State of California, on May 4,
2022.
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SUNRUN INC. |
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By: |
/s/ Mary Powell |
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Mary Powell
Chief Executive Officer and Director
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KNOW ALL BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Mary Powell, Thomas
vonReichbauer, and Michelle Philpot,
and each of them, as his or her true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all
capacities,,
to (i) act on, sign and file with the Securities and Exchange
Commission any and all amendments (including post-effective
amendments) to this registration statement together with all
schedules and exhibits thereto and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, together with all schedules and exhibits thereto,
(ii) act on, sign and file such certificates, instruments,
agreements and other documents as may be necessary or appropriate
in connection therewith, (iii) act on and file any supplement to
any prospectus included in this registration statement or any such
amendment or any subsequent registration statement filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended, and
(iv) take any and all actions which may be necessary or appropriate
to be done, as fully for all intents and purposes as he or she
might or could do in person, hereby approving, ratifying and
confirming all that such agent, proxy and attorney-in-fact or any
of his or her substitutes may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act, 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/ Mary Powell
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Chief Executive Officer and Director
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May 4, 2022 |
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Mary Powell
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(Principal Executive Officer)
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/s/ Thomas vonReichbauer
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Chief Financial Officer
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May 4, 2022 |
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Thomas vonReichbauer
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(Principal Financial Officer)
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/s/ Michelle Philpot
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Chief Accounting Officer
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May 4, 2022 |
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Michelle Philpot
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(Principal Accounting Officer)
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/s/ Lynn Jurich
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Co-Chair and Director |
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May 4, 2022 |
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Lynn Jurich
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/s/ Edward Fenster
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Co-Chair and Director |
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May 4, 2022 |
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Edward Fenster
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/s/ Katherine August-deWilde
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Director |
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May 4, 2022 |
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Katherine August-deWilde
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/s/ Leslie Dach
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Director |
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May 4, 2022 |
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Leslie Dach
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/s/ Alan Ferber
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Director |
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May 4, 2022 |
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Alan Ferber
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/s/ Sonita Lontoh
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Director |
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May 4, 2022 |
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Sonita Lontoh
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/s/ Gerald Risk |
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Director |
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May 4, 2022 |
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Gerald Risk |
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/s/ Manjula Talreja
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Director |
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May 4, 2022 |
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Manjula Talreja |
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