As
filed with the Securities and Exchange Commission on November 17, 2023
Registration No. 333-273327
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3/A
(Amendment
No.1)
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HALLADOR
ENERGY COMPANY
(Exact name of registrant as specified in its charter)
Colorado
(State or other jurisdiction of
incorporation or organization) |
84-1014610
(I.R.S. Employer
Identification Number) |
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
(Address, including zip code,
and telephone number, including area code, of registrant’s principal executive offices)
Lawrence D. Martin
Chief Financial Officer and Corporate Secretary
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Please
address a copy of all communications to:
Sean M. Ewen, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
From time to time after the effective date
of this registration statement.
(Approximate date of commencement of proposed sale
to the public)
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box: ¨
If any of the
securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box. x
If this Form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, 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 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.
Large accelerated filer |
¨
|
Accelerated filer |
x |
Non-accelerated filer |
¨ |
Smaller reporting company |
x |
|
Emerging growth company |
¨ |
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby
amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
The information in
this prospectus is not complete and may be changed. The securities may not be sold until the registration statement filed with the Securities
and Exchange Commission (“SEC”) is effective. This prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
NOVEMBER 17, 2023
PROSPECTUS
HALLADOR ENERGY COMPANY
$150,000,000
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Subscription Rights
Purchase Contracts
Units
We may issue securities from
time to time in one or more offerings, in amounts, at prices and on terms determined at the time of offering. This prospectus describes
the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms
of these securities in supplements to this prospectus, which also will describe the specific manner in which these securities will be
offered and may supplement, update or amend information contained in this prospectus. You should read this prospectus and any applicable
prospectus supplement before you invest. The aggregate offering price of the securities we sell pursuant to this prospectus will not exceed
$150,000,000.
The securities may be sold
directly to you, through agents or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities,
we will name them and describe their compensation in a prospectus supplement. The price to the public of those securities and the net
proceeds we expect to receive from that sale will be set forth in a prospectus supplement.
Our common stock is
quoted on The Nasdaq Capital Market under the symbol “HNRG.” On November 16, 2023, the last reported sale price of our common
stock on the Nasdaq Capital Market was $12.59. None of the other securities that we may offer under this prospectus are currently publicly
traded. Each prospectus supplement will indicate whether the securities offered thereby will be listed on any securities exchange.
Investing in our securities
involves risks. See “Risk Factors” beginning on page 4 of this prospectus and the Risk Factors set forth in our Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, as supplemented by our Quarterly
Reports on Form 10-Q for each fiscal quarter ended March 31, 2023, June 30, 2023 and September 30, 2023, which are incorporated
by reference in this prospectus.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus or any applicable prospectus supplement. Any representation to the contrary is a criminal offense.
The date of this prospectus is November ,
2023.
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the U.S. Securities and Exchange Commission, or the
SEC, using a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time
and in one or more offerings up to a total dollar amount of $150,000,000, as described in this prospectus. The securities may be
offered at prices and on terms described in one or more supplements to this prospectus.
This
prospectus provides you with a general description of the securities that may be offered. Each time we use this prospectus to offer securities,
we will provide one or more prospectus supplements that will contain specific information about the terms of such offering. The prospectus
supplement may add, update or change information contained in this prospectus. To the extent information in this prospectus is inconsistent
with information contained in a prospectus supplement, you should rely on the information in the prospectus supplement. You should read
both this prospectus and any applicable prospectus supplement together with the information incorporated by reference herein and therein
and the additional information described under the heading “Where You Can Find More Information.”
We have not authorized anyone
to provide you with information that is different from that contained, or incorporated by reference, in this prospectus, any applicable
prospectus supplement or in any related free writing prospectus. We take no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. This prospectus and any applicable prospectus supplement or any related
free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities
described in the applicable prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances
in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement,
the documents incorporated by reference and any related free writing prospectus is accurate only as of their respective dates. Our business,
financial condition, results of operations and prospects may have changed materially since those dates.
References in this prospectus
to “Hallador,” “we,” “us,” “our,” the “Company” or similar references mean
Hallador Energy Company and its subsidiaries. When we refer to “you” in this section, we mean all purchasers of the securities
being offered by this prospectus and any accompanying prospectus supplement, whether they are the holders or only indirect owners of those
securities.
This prospectus contains
our registered and unregistered trademarks and service marks, as well as trademarks and service marks of third parties. Solely for convenience,
these trademarks and service marks are referenced without the ®, ™ or similar symbols, but such 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
and service marks. All brand names, trademarks and service marks appearing in this prospectus are the property of their respective holders.
Cautionary
Statement Regarding Forward-Looking Statements
Certain statements and
information in this prospectus, any prospectus supplement and any related free writing prospectus, including the information incorporated
by reference herein and therein may constitute “forward-looking” statements. These statements are based on our beliefs, as
well as assumptions made by, and information currently available to us. When used in this document, the words “anticipate,”
“believe,” “continue,” “estimate,” “expect,” “forecast,” “may,”
“project,” “will,” and similar expressions identify forward-looking statements. Without limiting the foregoing,
all statements relating to our future outlook, anticipated capital expenditures, future cash flows and borrowings and sources of funding
are forward-looking statements. These statements reflect our current views with respect to future events and are subject to numerous
assumptions that we believe are open to a wide range of uncertainties and business risks, and actual results may differ materially from
those discussed in these statements. Among the factors that could cause actual results to differ from those in the forward-looking statements
are: changes in macroeconomic and market conditions and market volatility, and the impact of such changes and volatility on our financial
position; the outcome or escalation of current hostilities in Ukraine; changes in competition in coal markets and our ability to respond
to such changes; changes in coal prices, demand, and availability which could affect our operating results and cash flows; risks associated
with the expansion of our operations and properties, including our recent acquisition of Hoosier Energy’s Merom Generation Station;
legislation, regulations, and court decisions and interpretations thereof, including those relating to the environment and the release
of greenhouse gases, mining, miner health and safety, and health care; deregulation of the electric utility industry or the effects of
any adverse change in the coal industry, electric utility industry, or general economic conditions; dependence on significant customer
contracts, including renewing customer contracts upon expiration of existing contracts; changing global economic conditions or in industries
in which our customers operate; investors’, suppliers’ and other counterparties’ increasing attention to environmental,
social, and governance (“ESG”) matters; the effect of changes in taxes or tariffs and other trade measures; risks relating
to inflation and increasing interest rates; liquidity constraints, including those resulting from any future unavailability of financing;
customer bankruptcies, cancellations or breaches to existing contracts, or other failures to perform; customer delays, failure to take
coal under contracts or defaults in making payments; adjustments made in price, volume or terms to existing coal supply agreements; our
productivity levels and margins earned on our coal sales; changes in equipment, raw material, service or labor costs or availability,
including due to inflationary pressures; changes in the availability of skilled labor; our ability to maintain satisfactory relations
with our employees; increases in labor costs, adverse changes in work rules, or cash payments or projections associated with workers’
compensation claims; increases in transportation costs and risk of transportation delays or interruptions; operational interruptions
due to geologic, permitting, labor, weather-related or other factors; risks associated with major mine-related accidents, mine fires,
mine floods or other interruptions; results of litigation, including claims not yet asserted; difficulty maintaining our surety bonds
for mine reclamation; decline in or change in the coal industry’s share of electricity generation, including as a result of environmental
concerns related to coal mining and combustion and the cost and perceived benefits of other sources of electricity, such as natural gas,
nuclear energy, and renewable fuels; difficulty in making accurate assumptions and projections regarding post-mine reclamation; uncertainties
in estimating and replacing our coal reserves; the impact of current and potential changes to federal or state tax rules and regulations,
including a loss or reduction of benefits from certain tax deductions and credits; difficulty obtaining commercial property insurance;
and/or evolving cybersecurity risks, such as those involving unauthorized access, denial-of-service attacks, malicious software, data
privacy breaches by employees, insiders or others with authorized access, cyber or phishing-attacks, ransomware, malware, social engineering,
physical breaches or other actions.
We qualify all of the
forward-looking statements contained in this prospectus, in the documents incorporated by reference herein and in any prospectus
supplement by these cautionary statements. These forward-looking statements speak only as of the date on which the statements were
made and are not guarantees of future performance. Although we undertake no obligation to revise or update any forward- looking
statements, whether as a result of new information, future events or otherwise, you are advised to review any additional disclosures
we make in the documents we subsequently file with the SEC that are incorporated by reference in this prospectus and any prospectus
supplement. See “Where You Can Find More Information.”
PROSPECTUS
SUMMARY
This summary highlights
selected information appearing elsewhere in or incorporated by reference into this prospectus. Because it is a summary, it may not contain
all of the information that may be important to you. To understand this offering fully, you should read this entire prospectus and the
documents incorporated by reference herein carefully, including the information referenced under the heading “Risk Factors”
and in our financial statements, together with any accompanying prospectus supplement. See the section entitled “Where You Can
Find More Information” for a further discussion on incorporation by reference.
Overview
Hallador is an energy company operating in the
state of Indiana. Historically, the largest portion of our business has been devoted to coal mining in the state of Indiana through Sunrise
Coal, LLC (a wholly-owned subsidiary) serving the electric power generation industry.
On October 21, 2022, Hallador, through its
subsidiary Hallador Power Company, LLC, completed its acquisition of the one Gigawatt Merom Generating Station (“Merom”) located
in Sullivan County, Indiana pursuant to an Asset Purchase Agreement with Hoosier Energy. As a result of the Merom acquisition, the
Company has two reportable segments: coal operations (operated by Sunrise Coal, LLC) and electric operations (operated by Hallador Power
Company, LLC).
In addition to our reportable
segments, the remainder of our operations are presented as “Corporate and Other” and primarily are comprised of unallocated
corporate costs in addition to activities such as a 50% interest in Sunrise Energy, LLC, a private gas exploration company with operations
in Indiana, accounted for using the equity method, and our wholly-owned subsidiary Summit Terminal LLC, a logistics transport facility
located on the Ohio River.
Corporate
Information
We were incorporated under
the laws of the State of Colorado in 1985 and are headquartered at 1183 East Canvasback Drive, Terre Haute, Indiana. Our telephone
number is (303) 839-5504.
The Securities
That May Be Offered
We may offer or sell common
stock, preferred stock, depositary shares, debt securities, warrants, subscription rights, purchase contracts and units in one or more
offerings and in any combination. The aggregate offering price of the securities we sell pursuant to this prospectus will not exceed $150,000,000.
Each time securities are offered with this prospectus, we will provide a prospectus supplement that will describe the specific amounts,
prices and terms of the securities being offered and the net proceeds we expect to receive from that sale.
The securities may be sold
to or through underwriters, dealers or agents or directly to purchasers or as otherwise set forth in the section of this prospectus captioned
“Plan of Distribution” or in any applicable prospectus supplement. Each prospectus supplement will set forth the names of
any underwriters, dealers, agents or other entities involved in the sale of securities described in that prospectus supplement and any
applicable fee, commission or discount arrangements with them.
RISK
FACTORS
Investing in our securities
involves a high degree of risk. Before making a decision to invest in our securities, you should carefully consider the risks described
under the heading “Risk Factors” in any applicable prospectus supplement and any related free writing prospectus, and under
“Part I, Item 1A. Risk Factors” contained in our most recent annual report on Form 10-K and in subsequent quarterly
reports on Form 10-Q, as well as any amendments thereto, which are incorporated by reference into this prospectus and the applicable
prospectus supplement in their entirety, together with other information in this prospectus and the applicable prospectus supplement,
the documents incorporated by reference herein and therein, and any free writing prospectus that we may authorize for use in connection
with a specific offering. See “Where You Can Find More Information.”
USE
OF PROCEEDS
Unless otherwise provided
in the applicable prospectus supplement, we currently expect to use the net proceeds that we receive from sales of our securities under
this prospectus for general corporate purposes. The actual application of proceeds from the sale of any particular securities issued hereunder
will be described in the applicable prospectus supplement relating to such securities.
DESCRIPTION
OF SECURITIES WE MAY OFFER
This prospectus contains
summary descriptions of our common stock, preferred stock, debt securities, depositary shares, warrants, subscription rights, purchase
contracts and units that we may offer from time to time. These summary descriptions are not meant to be complete descriptions of each
security. The particular terms of any security will be described in the accompanying prospectus supplement and other offering material.
The accompanying prospectus supplement may add, update or change the terms and conditions of the securities as described in this prospectus.
DESCRIPTION
OF CAPITAL STOCK
The
following is a description of the rights of our authorized stock and related provisions of our Second Restated Articles of Incorporation
(the “Articles”) and bylaws, as amended (collectively, our “Organizational Documents”). This
description is qualified in its entirety by, and should be read in conjunction with, our Organizational Documents.
Authorized &
Outstanding Stock
We have a total of 110,000,000
shares authorized for issuance, which consists of 100,000,000 shares of common stock, par value $0.01, and 10,000,000 shares of preferred
stock, par value $0.10. The common and preferred stock are fully paid and nonassessable.
As
of November 3, 2023, only the Company’s common stock was registered under Section 12 of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and as of the same date, there were 33,142,403 outstanding shares of common stock and no
shares outstanding of the Company’s preferred stock.
Description of Common
Stock
Voting
Each shareholder of record
shall have one vote for each share of common stock standing in his or her name on the books of the Company and entitled to vote. Cumulative
voting shall not be allowed in the election of directors or for any other purpose.
At all meetings of shareholders,
one-third of the shares entitled to vote at such meeting represented in person or by proxy shall constitute a quorum, and at any meeting
at which a quorum is present, the affirmative vote of a majority of the shares represented at such meeting and entitled to vote on the
subject matters shall be the act of the shareholders; except that the following actions shall require the affirmative vote or concurrence
of the holders of at least a majority of all of the outstanding shares of the Company entitled to vote thereon: (1) adopting an amendment
or amendments to the Articles, (2) lending money to, guaranteeing the obligations of or otherwise assisting any of the directors
of the Company, (3) authorizing the sale, lease, exchange or other disposition of all or substantially all of the property and assets
of the Company, with or without its goodwill, not in the usual and regular course of business, (4) approving a plan of merger or
consolidation, (5) adopting a resolution submitted by the Board of Directors of the Company to dissolve the Company, and (6) adopting
a resolution submitted by the Board of Directors of the Company to revoke voluntary dissolution proceedings.
Shareholder Consent to Action
Any action required or permitted
under Colorado law to be taken by the shareholders may be taken by the shareholders without a meeting as evidenced by the written consent
of the shareholders holding at least a majority of all of the outstanding shares of the Company entitled to vote thereon, unless a greater
percentage is required by Colorado law or the Articles.
Transfer Agent and Registrar
The transfer agent and registrar
for the common stock is Computershare Trust Company, N.A.
Listing
The common stock is listed
on The Nasdaq Capital Market under the symbol “HNRG”.
Preferred Stock Description
Preferred stock may be issued
in one or more series or classes with designations, preferences, limitations and relative rights determined by our board of directors
without any vote or action by our shareholders, subject to limitations prescribed by Colorado law and the provisions of our Organizational
Documents.
Any of the voting powers,
designations, preferences, rights and qualifications, limitations or restrictions of any such series of preferred stock may be made dependent
upon facts ascertainable outside of our Organizational Documents or of any amendment hereto, or outside the resolution or resolutions
providing for the issue of such stock adopted by the Board of Directors of the Company pursuant to authority expressly vested in it by
these provisions, provided that such facts and the manner in which such facts shall operate upon the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of such series of stock are clearly and expressly set forth in the resolution or
resolutions providing for the issue of such stock adopted by the Board of Directors of the Company.
Dividend Rights
Our common stock and
our preferred stock are entitled to dividends if declared by the Board of Directors of the Company out of legally available funds.
Payments Upon Partial
Liquidation
The Board of Directors of
the Company may from time to time distribute to the shareholders in partial liquidation, out of either stated capital or capital surplus
of the Company, a portion of its assets, in cash or property, subject to the limitations contained in the statutes of Colorado.
No Preemptive or Preferential
Rights
No
holder of any shares of any class of stock of the Company shall, as such holder, have any preemptive or preferential right to receive,
purchase, or subscribe to (1) any unissued or treasury shares of any class of stock, whether now or hereafter authorized, of the
Company, (2) any obligations, evidences of indebtedness, or other securities of the Company convertible into or exchangeable for,
or carrying or accompanied by any rights to receive, purchase, or subscribe to, any such unissued or treasury shares, (3) any warrant
or option for the purchase of, any of the foregoing securities, or (4) any other securities that may be issued or sold by the Company,
other than such (if any) as the Board of Directors of the Company, in its sole and absolute discretion, may determine from time to time.
DESCRIPTION
OF DEBT SECURITIES
The following description,
together with the additional information we include in any applicable prospectus supplement, summarizes certain general terms and provisions
of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this prospectus. We will indicate in the supplement to what extent the general
terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities
either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus.
Debt securities may be our senior or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the
debt securities will be our direct, unsecured obligations and may be issued in one or more series. We may issue debt securities that are
convertible into shares of our common stock.
The debt securities will
be issued under an indenture between us and a trustee to be specified in an accompanying prospectus supplement. We have summarized select
portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration
statement of which this prospectus forms a part and you should read the indenture for provisions that may be important to you. Capitalized
terms used in the summary and not defined herein have the meanings specified in the indenture.
General
The terms of each series
of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth or determined in the manner
provided in a resolution of our Board of Directors, in an officer’s certificate, or by a supplemental indenture. The particular
terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement
or term sheet). In addition, any changes to the description below also will be set forth in the applicable prospectus supplement.
We can issue an unlimited
amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium,
or at a discount. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series
of debt securities being offered the aggregate principal amount and the following terms of the debt securities, if applicable:
| • | the title and ranking of the debt securities (including the terms of any subordination provisions); |
| • | the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt
securities; |
| • | any limit upon the aggregate principal amount of the debt securities; |
| • | the date or dates on which the principal of the securities of the series is payable; |
| • | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate
or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest,
the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record
date for the interest payable on any interest payment date; |
| • | the place or places where principal of, and interest, if any, on the debt securities will be payable (and
the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where
notices and demands to us in respect of the debt securities may be delivered; |
| • | the period or periods within which, the price or prices at which and the terms and conditions upon which
we may redeem the debt securities; |
| • | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous
provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and the
terms and conditions upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| • | the dates on which and the price or prices at which we will repurchase debt securities at the option of
the holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
| • | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and
any integral multiple thereof; |
| • | whether the debt securities will be issued in the form of certificated debt securities or global debt
securities; |
| • | the portion of the principal amount of the debt securities payable upon declaration of acceleration
of the maturity date, if other than the principal amount; |
| • | the currency of denomination of the debt securities, which may be United States dollars or any foreign
currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing
such composite currency; |
| • | the designation of the currency, currencies or currency units in which payment of principal of, and premium
and interest on the debt securities will be made; |
| • | if payments of principal of, or premium or interest on the debt securities will be made in one or more
currencies or currency units other than those in which the debt securities are denominated, the manner in which the exchange rate with
respect to these payments will be determined; |
| • | the manner in which the amounts of payment of principal of, and premium, if any, or interest on the debt
securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference
to a commodity, commodity index, stock exchange index or financial index; |
| • | any provisions relating to any security provided for the debt securities; |
| • | any addition to, deletion of or change in the Events of Default described in this prospectus or in the
indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture
with respect to the debt securities; |
| • | any addition to, deletion of or change in the covenants described in this prospectus or in the indenture
with respect to the debt securities; |
| • | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with
respect to the debt securities; |
| • | the provisions, if any, relating to conversion or exchange of any debt securities, including if applicable,
the conversion or exchange price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory,
at the option of the holders thereof or at our option, the events requiring an adjustment of the conversion price or exchange price and
provisions affecting conversion or exchange if such debt securities are redeemed; |
| • | any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture
as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection
with the marketing of the securities; and |
| • | whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series,
including the terms of subordination, if any, of such guarantees. |
We may issue debt securities
that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity
pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase
price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and
any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or
units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information
with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable
prospectus supplement.
Transfer and
Exchange
Each debt security will be
represented by either one or more global securities registered in the name of a clearing agency registered under the Exchange Act, which
we refer to as the depositary, or a nominee of the depositary (we will refer to any debt security represented by a global debt security
as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security
represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement.
Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will
not be issuable in certificated form.
Certificated
Debt Securities
You may transfer or exchange
certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge
will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection with a transfer or exchange.
You may affect the transfer
of certificated debt securities and the right to receive the principal of, and premium and interest on certificated debt securities only
by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate
to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt
Securities and Book-Entry System
Each global debt security
representing book-entry debt securities will be deposited with, or on behalf of, the depositary, and registered in the name of the depositary
or a nominee of the depositary.
Covenants
We will set forth in the
applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
Consolidation,
Merger and Sale of Assets
We may not consolidate with
or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person, which we refer
to as a successor person, unless:
| • | we are the surviving corporation or the successor person (if other than us) is a corporation organized
and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and
under the indenture; and |
| • | immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred
and be continuing. |
Notwithstanding the above,
any of our subsidiaries may consolidate with, merge into or transfer all or part of its assets or properties to us.
Events of
Default
“Event of Default”
means with respect to any series of debt securities, any of the following:
| • | default in the payment of any interest upon any debt security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or
with a paying agent prior to the expiration of the 30- day period); |
| • | default in the payment of principal of any security of that series at its maturity; |
| • | default in the performance or breach of any other covenant or warranty by us in the indenture (other than
a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series),
which default continues uncured for a period of 60 days after we receive written notice from the trustee, or we and the trustee receive
written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided
in the indenture; |
| • | certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us; and |
| • | any other Event of Default provided with respect to debt securities of that series that is described in
the applicable prospectus supplement. |
No Event of Default with
respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an Event of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an
acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding
from time to time.
We will provide the trustee
written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default,
which notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose
to take in respect thereof.
If an Event of Default with
respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less
than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if
given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount
securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if
any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency
or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities
will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding
debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before
a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the
outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment
of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in
the indenture. We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the
particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of
an Event of Default.
The indenture provides that
the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity
satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right
or power. Subject to certain rights of the trustee, 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.
No holder of any debt security
of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment
of a receiver or trustee, or for any remedy under the indenture, unless:
| • | that holder has previously given to the trustee written notice of a continuing Event of Default with respect
to debt securities of that series; and |
| • | the holders of not less than 25% in principal amount of the outstanding debt securities of that series
have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as
trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities
of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
Notwithstanding any other
provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal
of, and premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit
for the enforcement of payment.
The indenture requires us,
within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. If a Default
or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer
of the trustee, the trustee shall send to each securityholder of the securities of that series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default.
The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of
Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines
in good faith that withholding notice is in the interest of the holders of those debt securities.
Modification
and Waiver
We and the trustee may modify,
amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
| • | to cure any ambiguity, defect or inconsistency; |
| • | to comply with covenants in the indenture described above under the heading “Consolidation, Merger
and Sale of Assets”; |
| • | to provide for uncertificated securities in addition to or in place of certificated securities; |
| • | to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
| • | to surrender any of our rights or powers under the indenture; |
| • | to add covenants or events of default for the benefit of the holders of debt securities of any series; |
| • | to comply with the applicable procedures of the applicable depositary; |
| • | to make any change that does not adversely affect the rights of any holder of debt securities; |
| • | to provide for the issuance of and establish the form and terms and conditions of debt securities of any
series as permitted by the indenture; |
| • | to effect the appointment of a successor trustee with respect to the debt securities of any series and
to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; |
| • | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture
under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”); |
| • | to add to, change or eliminate any provision of the indenture or the debt securities of any series in
accordance with the Trust Indenture Act, or to comply with the provisions of The Depository Trust Company, Euroclear Bank SA/NV or Clearstream
Banking, S.A. or the trustee with respect to provisions of the indenture or the debt securities of any series relating to transfers or
exchanges of the debt securities of such series or beneficial interests in such securities; or |
| • | to conform any provision of the indenture, insofar as it relates to the debt securities of any series,
to the description of the debt securities of such series in the prospectus supplement relating to the offering of the debt securities
of such series. |
We may modify and amend the
indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series
affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each
affected debt security then outstanding if that amendment will:
| • | reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
| • | reduce the rate of or extend the time for payment of interest (including default interest) on any debt
security; |
| • | reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt
securities; |
| • | reduce the principal amount of discount securities payable upon acceleration of maturity; |
| • | waive a default in the payment of the principal of, or premium or interest on any debt security (except
a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount
of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
| • | make the principal of or premium or interest on any debt security payable in currency other than that
stated in the debt security; |
| • | make any change to certain provisions of the indenture relating to, among other things, the right of holders
of debt securities to receive payment of the principal of, or premium and interest on those debt securities and to institute suit for
the enforcement of any such payment; or |
| • | waive a redemption payment with respect to any debt security. |
Except for certain specified
provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series, may, on behalf of
the holders of all debt securities of that series, waive our compliance with provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any series, may, on behalf of the holders of all the debt securities of such series,
waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal
of, premium or any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount
of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default
that resulted from the acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
The indenture provides that,
unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations
in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit
with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency
other than U.S. dollars, government obligations that issued or caused to be issued such currency, that, through the payment of interest
and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion
of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal,
premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity
of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur
only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been
published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change
in the applicable United States federal income tax law, in either case to the effect that, and based thereon, such opinion shall confirm
that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes
as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance
of Certain Covenants
The indenture provides that,
unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
| • | we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale
of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in
the applicable prospectus supplement; and |
| • | any omission to comply with those covenants will not constitute a Default or an Event of Default with
respect to the debt securities of that series. |
We refer to this as covenant
defeasance. The conditions include:
| • | depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities
denominated in a single currency other than U.S. dollars, government obligations of the government that issued or caused to be issued
such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient
in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment
of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the
stated maturity of those payments in accordance with the terms of the indenture and those debt securities; |
| • | such deposit will not result in a breach or violation of, or constitute a default under the indenture
or any other agreement to which we are a party; |
| • | no Default or Event of Default with respect to the applicable series of debt securities shall have occurred
or is continuing on the date of such deposit; and |
| • | delivering to the trustee an opinion of counsel to the effect that we have received from, or there has
been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been
a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the
same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had
not occurred. |
No Personal
Liability of Directors, Officers, Employees or Stockholders
None of our past, present
or future directors, officers, employees or stockholders, as such, will have any liability for any of our obligations under the debt securities
or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security,
each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities.
However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the
SEC that such a waiver is against public policy.
Governing
Law
The indenture and the debt
securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the
laws of the State of New York.
The indenture will provide
that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture,
the debt securities or the transactions contemplated thereby.
The indenture will provide
that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted
in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case
located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities)
irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will provide
that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court)
to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding
brought in any such court. The indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance
of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other
proceeding has been brought in an inconvenient forum.
DESCRIPTION
OF DEPOSITARY SHARES
We may elect to offer fractional
shares of preferred stock, or depositary shares, rather than full shares of preferred stock. If we do, we will issue to the public receipts,
called depositary receipts, for depositary shares, each of which will represent a fraction of a share of a particular series of preferred
stock, to be described in the applicable prospectus supplement. Unless otherwise provided in the prospectus supplement, each owner of
a depositary share will be entitled to all the rights and preferences of the preferred stock represented by the depositary share, in proportion
to the applicable fractional interest in a share of preferred stock represented by the depositary share. Those rights include dividend,
voting, redemption, conversion and liquidation rights.
The shares of preferred stock
underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary under a deposit agreement
between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend
disbursing agent for the depositary shares.
The depositary shares will
be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts agree to be bound by the
deposit agreement, which will require holders to take certain actions such as filing proof of residence and paying certain charges.
The summary of terms of the
depositary shares contained in this prospectus is not complete. You should refer to the form of the deposit agreement, our certificate
of incorporation and the certificate of designation for the applicable series of preferred stock that are, or will be, filed with the
SEC.
DESCRIPTION
OF WARRANTS
We may issue warrants to
purchase debt securities, preferred stock, depositary shares or common stock. We may offer warrants separately or together with one or
more additional warrants, debt securities, preferred stock, depositary shares or common stock, or any combination of those securities
in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit, the applicable prospectus
supplement will specify whether those warrants may be separated from the other securities in the unit prior to the expiration date of
the warrants.
The applicable prospectus
supplement will describe the following terms of any warrants:
| • | the specific designation and aggregate number of, and the offering price at which we will issue, the warrants; |
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| • | the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants; |
| • | whether the warrants are to be sold separately or with other securities as parts of units; |
| • | whether the warrants will be issued in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in
that unit; |
| • | any applicable material U.S. federal income tax consequences; |
| • | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents; |
| • | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange; |
| • | the designation and terms of any equity securities purchasable upon exercise of the warrants; |
| • | the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased
upon exercise of the warrants; |
| • | if applicable, the designation and terms of the debt securities, preferred stock, depositary shares or
common stock with which the warrants are issued and the number of warrants issued with each security; |
| • | if applicable, the date from and after which any warrants issued as part of a unit and the related debt
securities, preferred stock, depositary shares or common stock will be separately transferable; |
| • | the number of shares of preferred stock, the number of depositary shares or the number of shares of common
stock purchasable upon exercise of a warrant and the price at which those shares may be purchased; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | information with respect to book-entry procedures, if any; |
| • | the antidilution provisions, and other provisions for changes to or adjustment in the exercise price,
of the warrants, if any; |
| • | any redemption or call provisions; and |
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
or exercise of the warrants. |
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may issue subscription
rights to purchase our common stock, preferred stock, warrants or debt securities, or units consisting of some or all of these securities.
These subscription rights may be offered independently or together with any other security offered hereby and may or may not be transferable
by the stockholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may
enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers
may be required to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement
relating to any subscription rights we offer, if any, will, to the extent applicable, include specific terms relating to the offering,
including some or all of the following:
| • | the price, if any, for the subscription rights; |
| • | the exercise price payable for our common stock, preferred stock, warrants or debt securities, or units
consisting of some or all of these securities, upon the exercise of the subscription rights; |
| • | the number of subscription rights to be issued to each stockholder; |
| • | the number and terms of our common stock, preferred stock, warrants or debt securities, or units consisting
of some or all of these securities, which may be purchased per each subscription right; |
| • | the extent to which the subscription rights are transferable; |
| • | any other terms of the subscription rights, including the terms, procedures and limitations relating to
the exchange and exercise of the subscription rights; |
| • | the date on which the right to exercise the subscription rights shall commence, and the date on which
the subscription rights shall expire; |
| • | the extent to which the subscription rights may include an over-subscription privilege with respect to
unsubscribed securities or an over-allotment privilege to the extent the securities are fully subscribed; and |
| • | if applicable, the material terms of any standby underwriting or purchase arrangement which may be entered
into by us in connection with the offering of subscription rights. |
The descriptions of the subscription
rights in this prospectus and in any prospectus supplement are summaries of the material provisions of the applicable subscription right
agreements. These descriptions do not restate those subscription right agreements in their entirety and may not contain all the information
that you may find useful. We urge you to read the applicable subscription right agreements because the agreements, and not the summaries,
define your rights as holders of the subscription rights. For more information, please review the forms of the relevant subscription right
agreements, which will be filed with the SEC promptly after the offering of subscription rights and will be available as described in
the section of this prospectus captioned “Where You Can Find More Information.”
DESCRIPTION
OF PURCHASE CONTRACTS
The following description
summarizes the general features of the purchase contracts that we may offer under this prospectus. Although the features we have summarized
below will generally apply to any future purchase contracts we may offer under this prospectus, we will describe the particular terms
of any purchase contracts that we may offer in more detail in the applicable prospectus supplement. The specific terms of any purchase
contracts may differ from the description provided below as a result of negotiations with third parties in connection with the issuance
of those purchase contracts, as well as for other reasons. Because the terms of any purchase contracts we offer under a prospectus supplement
may differ from the terms we describe below, you should rely solely on information in the applicable prospectus supplement if that summary
is different from the summary in this prospectus.
We will incorporate by reference
into the registration statement, of which this prospectus is a part, the form of any purchase contract that we may offer under this prospectus
before the sale of the related purchase contract. We urge you to read any applicable prospectus supplement related to specific purchase
contracts being offered, as well as the complete instruments that contain the terms of the securities that are subject to those purchase
contracts.
We may issue purchase contracts,
including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or variable number of our securities
at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell
to us, a specific or varying number of our securities.
If we offer any purchase
contracts, certain terms of that series of purchase contracts will be described in the applicable prospectus supplement, including, without
limitation, the following:
| • | the price of the securities or other property subject to the purchase contracts (which may be determined
by reference to a specific formula described in the purchase contracts); |
| • | whether the purchase contracts are issued separately, or as a part of units each consisting of a purchase
contract and one or more of our other securities, securing the holder’s obligations under the purchase contract; |
| • | any requirement for us to make periodic payments to holders or vice versa, and whether the payments are
unsecured or pre-funded; |
| • | any provisions relating to any security provided for the purchase contracts; |
| • | whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell,
the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of
determining those amounts; |
| • | whether the purchase contracts are to be prepaid or not; |
| • | whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value,
performance or level of the securities subject to purchase under the purchase contract; |
| • | any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase
contracts; |
| • | a discussion of certain U.S. federal income tax considerations applicable to the purchase contracts; |
| • | whether the purchase contracts will be issued in fully registered or global form; and |
| • | any other terms of the purchase contracts and any securities subject to such purchase contracts. |
DESCRIPTION
OF UNITS
We may issue units comprising
two or more securities described in this prospectus in any combination. For example, we might issue units consisting of a combination
of debt securities and warrants to purchase common stock. The following description sets forth certain general terms and provisions of
the units that we may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general
terms and provisions may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued
so that the holder of the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations
of a holder of each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities
included in the unit may not be held or transferred separately at any time or at any time before a specified date. A copy of the forms
of the unit agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each time we issue
units, and you should read those documents for provisions that may be important to you.
The prospectus supplement
relating to any particular issuance of units will describe the terms of those units, including, to the extent applicable, the following:
| • | the designation and terms of the units and the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred separately; |
| • | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units; and |
| • | whether the units will be issued in fully registered or global form. |
PLAN
OF DISTRIBUTION
We may sell the securities
from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or
through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributed 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 |
Each time that we sell securities
covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set
forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds to
us, if applicable.
Offers to purchase the securities
being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities
from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in
the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then
resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized
in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the
time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the underwriter
may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities
to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent
will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying
prices to be determined by the dealer.
Any compensation paid to
underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933 (the “Securities
Act”), and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed
to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil
liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof
and to reimburse those persons for certain expenses.
Any common stock will be
listed on The Nasdaq Capital Market, but any other securities may or may not be listed on a national securities exchange. To facilitate
the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons
participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments
or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons
may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased
in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the
securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may engage in at the market
offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter
into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may
use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock,
and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third
party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus
supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other
third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution
or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering
of other securities.
The specific terms of any
lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers
and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL
MATTERS
Unless otherwise specified
in a prospectus supplement, the validity of our common stock and preferred stock has been passed upon for us by the Chief Legal Officer
of the Company. The validity of all other securities being offered by this prospectus will be passed upon by Willkie Farr & Gallagher
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 financial statements
of Hallador Energy Company as of December 31, 2022 and for the year ended December 31, 2022 and management’s assessment
of the effectiveness of internal control over financial reporting as of December 31, 2022, incorporated by reference in this prospectus
and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton LLP,
independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
The financial statements
of the Company as of and for the year ended December 31, 2021 incorporated in this prospectus by reference to the Company’s Annual
Report on Form 10-K for the year ended December 31, 2022, have been so incorporated in reliance on the report of Plante & Moran,
PLLC, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The carve-out financial statements
of Merom Generating Station (a Component of Hoosier Energy Rural Electric Cooperative, Inc.) as of December 31, 2021 and 2020,
and for each of the two years in the period ended December 31, 2021, incorporated by reference in this prospectus by reference to
Hallador Energy Company’s current report on Form 8-K/A dated January 6, 2023 have been audited by Deloitte &
Touche LLP, an independent auditor, as stated in their report. Such financial statements are incorporated by reference in reliance upon
the report of such firm given their authority as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We are subject to the information
reporting requirements of the Exchange Act and, in accordance with these requirements, we are required to file periodic reports and other
information with the SEC. The SEC also maintains an Internet website at http://www.sec.gov that contains our filed reports, proxy
and information statements, and other information we file electronically with the SEC.
Additionally, we make our
SEC filings available, free of charge, on our website at www.halladorenergy.com as soon as reasonably practicable after we electronically
file such materials with, or furnish them to, the SEC. The information on our website, other than the filings incorporated by reference
in this prospectus, is not, and should not be, considered part of this prospectus, is not incorporated by reference into this document,
and should not be relied upon in connection with making any investment decision with respect to our securities.
INFORMATION
INCORPORATED BY REFERENCE
We are “incorporating
by reference” into this prospectus certain information we file with the SEC, which means that we are disclosing important information
to you by referring you to those documents. The information we incorporate by reference in this prospectus is legally deemed to be a part
of this prospectus, and later information that we file with the SEC will automatically update and supersede the information included in
this prospectus and the documents listed below. We incorporate the documents listed below:
| • | Current
Report on Form 8-K filed with the SEC on October 21,
2022 (as amended on January 6,
2023), June 1,
2023, July 19,
2023, August 3, 2023, and September 8, 2023; |
| • | All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the initial filing of the registration statement of which this prospectus forms a part until all of the securities being offered under
this prospectus or any prospectus supplement are sold (other than reports, documents or information that are furnished and not filed with
the SEC). |
We will furnish without charge
to you, on written or oral request, a copy of any or all of the documents incorporated by reference herein, other than exhibits to such
documents that are not specifically incorporated by reference therein. You should direct any requests for documents to us at the following
address or telephone number:
Hallador Energy Company
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution.
The following is an estimate of the expenses (all
of which are to be paid by us) that we may incur in connection with the securities being registered hereby.
| |
Amount | |
SEC registration fee | |
$ | 16,530 | |
FINRA filing fee | |
| * | |
The New York Stock Exchange supplemental listing fee | |
| * | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Blue Sky, qualification fees and expenses | |
| * | |
Transfer agent fees and expenses | |
| * | |
Trustee fees and expenses | |
| * | |
Warrant agent fees and expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
| * | These fees are calculated based on the securities offered and the number of issuances and accordingly
cannot be defined at this time. |
Item 15. Indemnification of Directors
and Officers.
The Company’s restated
Articles provide that a director of the Company shall not be personally liable to the Company or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Company
or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 7-5-114 of the Colorado Corporation Code (as repealed and amended by Section 7-108-403 of the Colorado Business Corporation
Act (the “CBCA”)), or (iv) for any transaction from which the director derived an improper personal benefit. If the CBCA is
amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director
of the Company will be eliminated or limited to the fullest extent permitted by the CBCA, as so amended.
The Company’s Articles
also provide that the Company may indemnify any person to the fullest extent allowed by the laws of Colorado. Section 7-109-102 of the
CBCA provides that a corporation has the power to indemnify a director against amounts paid and expenses incurred in connection with an
action, suit or proceeding to which he or she is a party or is threatened to be made a party by reason of such position, if he or she
acted in good faith and in a manner he or she reasonably believed to be in the best interests of the corporation in the case of a person’s
conduct in an official capacity with the corporation, or reasonably believed to be in the best interests of or not opposed to the best
interests of the corporation in all other cases, and, in any criminal proceeding, if such person had no reasonable cause to believe his
or her conduct was unlawful. The termination of a proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere,
or its equivalent, will not, of itself, create a presumption that the director did not meet such standard of conduct. A corporation may
not indemnify a director in the case of actions, suits or proceedings brought by or in the right of the corporation in which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances, and then only to the extent of reasonable expenses incurred in connection with such
action, suit or proceeding, including expenses incurred to obtain the court-ordered indemnification. Section 7-109-107 of the CBCA provides
that an officer of a corporation is entitled to mandatory and court-ordered indemnification as provided under the CBCA to the same extent
as a director. Section 7-109-107 of the CBCA also allows a corporation to indemnify and advance expenses to an officer, employee, fiduciary
or agent of the corporation to the same extent as to a director, and to a greater extent, if doing so would not be inconsistent with public
policy and if the corporation’s bylaws allow it to do so, the corporation is required to do so by contract, or the directors of
the corporation take action to authorize the corporation to do so.
The Company’s bylaws
provide that it will indemnify and hold harmless to the fullest extent permitted by the CBCA (as it replaces the Colorado Corporations
Code), as amended. any person who was or is made a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, referred to herein as a “Proceeding”, by reason
of the fact that he or she, or a person of whom he or she is the legal representative, was or is a director or officer, employee or agent
of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against his or her expenses, liabilities and loss (including attorneys’ fees, judgments,
fines, Employee Retirement Income Security Act of 1974 excise taxes or penalties, and amounts paid or to be paid in settlement), reasonably
incurred by him or her in connection with a Proceeding. Under the Company’s bylaws, the indemnification provided by the Company
shall continue as to any person who ceases to be a director, officer, employee or agent of the Company, and shall inure to the benefit
of any such person’s heirs, executors and administrators.
The rights to indemnification
provided under the Company’s bylaws include the right to payment of reasonable expenses incurred in defending any Proceeding in
advance of the final disposition of the Proceeding, except that payments of expenses in advance of final disposition of a Proceeding to
be made to a director or officer of the Company that incurred such expenses in such capacity, and not for any other capacity in which
service was or is rendered by such person while a director or officer), will only be made upon:
| a) | delivery to the Company of an undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it is ultimately determined that such director or officer is not entitled to indemnification, |
| b) | a written affirmation of such director’s or officer’s good faith belief that he or she conducted
himself or herself in good faith with regard to the actions giving rise to the Proceedings, and |
| c) | a determination as required under the CBCA (as it replaces the Colorado Corporations Code) of whether
the facts then known to those making the determination would not preclude advancement of such reasonable expenses. |
The Company may also, to the
extent authorized to do so by the Company’s board of directors, indemnify employees or agents of the Company to the same scope and
effect as the indemnification of directors and officers as described in the foregoing.
The Company will, unless ordered
otherwise by a court, indemnify a person pursuant to the provisions of the Company’s bylaws described above with respect to Proceedings
that are initiated by such person to enforce rights to indemnification by the Company only if such Proceeding was authorized by the Company’s
board of directors, or if such Proceeding was brought by such person upon the Company failing to pay any claim for indemnification within
sixty days after receipt of a written claim for indemnification and such claim is successful in whole or in part. The Company may assert
as a defense against any claim by a person making a claim for indemnification that such person’s conduct with respect to the matters
giving rise to the Proceedings in question does not satisfy the relevant standard of conduct under the CBCA that would make it permissible
for the Company to indemnify the claimant for the amount claimed. The Company carries the burden of proving that the claimant’s
conduct with respect to the matters giving rise to the Proceedings for which such claimant seeks indemnification does not satisfy the
standards of conduct under the CBCA. Neither the failure of the Company to make a determination prior to the commencement of such Proceedings
that indemnification is proper as the claimant has met the relevant standard of conduct under the CBCA, nor an actual determination by
the Company, including the Company’s board of directors, shareholders or independent legal counsel, that the claimant has not met
the relevant standard of conduct under the CBCA, will be a defense to an action by a claimant for indemnification or create a presumption
that the claimant has not met the applicable standard of conduct.
The rights to indemnification
and to payment of expenses in advance of the final disposition of a Proceeding that are provided by the Company’s bylaws are not
deemed to be exclusive of any other right to which a person seeking indemnification or advancement of expenses may be entitled or may
become entitled to under any law, the Company’s Articles, bylaws, agreement, vote of stockholders or approval by the Company’s
directors who are not parties to a Proceeding, or otherwise.
The Company’s bylaws
provide that it may purchase and maintain insurance on behalf of itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise, against any expenses, liabilities or loss, whether or not
the Company would have the power to indemnify such person against such expenses, liabilities or loss under the CBCA (as it replaces the
Colorado Corporations Code).
Item 16. Exhibits.
Exhibit No. |
Description |
1.1** |
Form of
Underwriting Agreement for Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Subscription Rights, Purchase
Contracts or Units. |
2.1 |
Asset
and Purchase Agreement dated February 14, 2022 (1). |
3.1 |
Second
Restated Articles of Incorporation of Hallador Energy Company, effective December 24, 2009 (2). |
3.2 |
By-laws
of Hallador Energy Company, effective December 24, 2009 (3). |
4.1** |
Form of
Specimen Certificate Representing Preferred Stock. |
4.2** |
Form of
Debt Security. |
4.3** |
Form of
Depositary Agreement. |
4.4** |
Form of
Warrant Agreement. |
4.5** |
Form of
Subscription Agreement. |
4.6** |
Form of
Purchase Contract Agreement. |
4.7** |
Form of
Unit Agreement. |
4.8** |
Form of
Unit. |
4.9 |
Form of
Indenture (4). |
5.1* |
Opinion
of the Chief Legal Officer of the Company. |
5.2 |
Opinion
of Willkie Farr & Gallagher LLP (4). |
23.1* |
Consent
of Grant Thornton LLP (independent registered public accounting firm of Hallador Energy Company). |
23.2* |
Consent
of Plante & Moran, PLLC. |
23.3* |
Consent
of Deloitte & Touche LLP. |
23.4* |
Consent
of the Chief Legal Officer of the Company (included in Exhibit 5.1). |
23.5 |
Consent of Willkie
Farr & Gallagher LLP (included in Exhibit 5.2) (4). |
24.1 |
Power
of Attorney (included on signature page hereto) (4). |
25.1*** |
Statement
of Eligibility of Trustee to be named later with respect to Form of Indenture for Debt Security, listed above as Exhibit 4.9. |
107* |
Filing
Fee Table. |
| ** | To be filed by amendment or as an exhibit to a current report
on Form 8-K of the registrant. |
| *** | To be filed in accordance with the requirements of Section 305(b)(2) of
the Trust Indenture Act of 1939 and Rule 5b-3 thereunder. |
| (1) | Filed as an exhibit to the Company’s Current Report on
Form 8-K/A filed with the SEC on March 11, 2022 (as amended). |
| (2) | Filed as an exhibit to the Company’s Current Report on
Form 8-K filed with the SEC on December 31, 2009. |
| (3) | Filed as an exhibit to the Company’s Form 10-K/A
filed with the SEC on June 12, 2020. |
| (4) | Filed as an exhibit
to the Registration Statement on Form S-3 filed with the SEC on July 19, 2023. |
Item 17. Undertakings.
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement: |
| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | to reflect in the prospectus any
facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 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: Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act, 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
the 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) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| (7) | 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. |
| (8) | The undersigned registrant hereby undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3/A and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the city of Terre Haute, State of Indiana on November 17, 2023.
|
HALLADOR ENERGY COMPANY |
|
|
|
By: |
/s/ Brent Bilsland |
|
|
Name: |
Brent Bilsland |
|
|
Title: |
Chairman, President and Chief Executive Officer |
Pursuant to the requirements
of the Securities Act of 1933, this Amendment No.1 to this Registration Statement has been signed by the following persons in the capacities
indicated and on the date set forth above.
/s/
Brent Bilsland |
|
* |
Brent Bilsland |
|
Bryan H. Lawrence |
Chairman, President and Chief Executive Officer |
|
Director |
|
|
|
* |
|
* |
Lawrence D. Martin |
|
David John Lubar |
Chief Financial Officer |
|
Director |
|
|
|
* |
|
* |
David Hardie |
|
Charles Ray Wesley IV |
Director |
|
Director |
|
|
|
* |
|
|
Steven Hardie |
|
|
Director |
|
|
|
|
|
*/s/ Brent Bilsland |
|
|
Brent Bilsland |
|
|
Attorney-in-Fact |
|
|
Exhibit 5.1
Hallador Energy Company
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
November 17, 2023
Ladies and Gentlemen:
I am the Chief Legal
Officer of Hallador Energy Company, a Colorado corporation, (the “Company”), and I and attorneys acting under my
supervision have acted as counsel in connection with the preparation and filing with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a
Registration Statement on Form S-3, including any amendments thereto (the “Registration Statement”), relating to
the proposed issuance from time to time of (i) debt securities of the Company (the “Debt Securities”) to be
issued pursuant to an indenture (the “Indenture”) to be entered into between the Company and a trustee to be
appointed by the Company (the “Trustee”), (ii) shares of common stock of the Company, par value $0.01 per share
(the “Common Stock”), (iii) shares of preferred stock of the Company, par value $0.10 per share (the
“Preferred Stock”), (iv) depositary shares representing fractional interests in Preferred Stock (the
“Depositary Shares”) pursuant to a depositary agreement (the “Depositary Agreement”), (v)
warrants representing rights to purchase Debt Securities, Common Stock, Preferred Stock or Depositary Shares (the
“Warrants”) pursuant to one or more warrant agreements (“Warrant Agreements”), (vi) purchase
contracts representing rights or obligations to purchase or sell Debt Securities, Common Stock, Preferred Stock or other securities
(the “Purchase Contracts”), (vii) subscription rights to purchase Common Stock, Preferred Stock, Warrants, Debt
Securities, or units consisting of some or all of these securities (the “Subscription Rights”) pursuant to one or
more subscription agreements (“Subscription Agreements”) and (viii) units comprising two or more of Debt
Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Purchase Contracts or Subscription Rights. In this opinion,
units comprising two or more of Debt Securities, Depositary Shares, Warrants, Purchase Contracts or Subscription Rights are referred
to as the “Units” and, together with the Debt Securities, the Depositary Shares, the Warrants, the Purchase
Contracts and the Subscription Rights, the “Securities”. The Securities being registered under the Registration
Statement will have an aggregate initial offering price of up to $150,000,000 and will be offered on a continuous or delayed basis
pursuant to the provisions of Rule 415 under the Securities Act.
Hallador Energy Company
November 17, 2023
Page 2
I or attorneys acting
under my supervision have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other instruments and have conducted such other investigations of fact and
law as I have deemed necessary or advisable for the purposes of this opinion. In our examination, we have assumed, without inquiry,
the legal capacity of all natural persons, the genuineness of all signatures (other than those on behalf of the Company), the
authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents
submitted to us as copies. I have obtained and relied upon, to the extent I deem appropriate, the certificates of officers or
executives of the Company as to factual matters. I call to your attention the fact that in rendering my opinion, I am expressing my
views only as to the internal laws of Colorado that counsel exercising customary due diligence would reasonably recognize as being
applicable to transactions contemplated by the Registration Statement but excluding any securities or blue sky laws, and I express
no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to matters
of municipal law or the laws of any other local agencies within any state.
Based upon and subject to
the foregoing and the assumptions, qualifications and limitations hereinafter set forth, I am of the opinion that when (i) all necessary
corporate action on the part of the Company has been taken to authorize the issuance and sale of such shares of Common Stock proposed
to be sold by the Company under the Registration Statement and any prospectus supplement relating thereto, including upon conversion of
the Debt Securities or the Preferred Stock or exercise of Subscription Rights or Warrants, and (ii) such shares of Common Stock are issued,
delivered and paid for as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance
with the applicable underwriting or other agreement and the terms of such Debt Securities, Preferred Stock, Subscription Rights or Warrants,
as applicable, such shares of Common Stock will be validly issued, fully paid and non-assessable.
Further, based upon and subject
to the foregoing and the assumptions, qualifications and limitations hereinafter set forth, I am of the opinion that when (i) all necessary
corporate action on the part of the Company has been taken to authorize the issuance and sale of such shares of Preferred Stock proposed
to be sold by the Company under the Registration Statement and any prospectus supplement relating thereto, including upon conversion of
the Debt Securities or exercise of Subscription Rights or Warrants, and (ii) such shares of Preferred Stock are issued, delivered and
paid for as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with the applicable
underwriting or other agreement and the terms of such Debt Securities, Subscription Rights or Warrants, as applicable, such shares of
Preferred Stock will be validly issued, fully paid and non-assessable.
The foregoing opinion is subject
to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other
similar laws relating to or affecting creditors’ rights or remedies generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law) and (iii) concepts of good faith, reasonableness and fair dealing, and standards of materiality.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to my position as Chief
Legal Officer of the Company under the heading “Legal Matters” in the Prospectus forming a part of thereof and in any amendments
or supplements to the Registration Statement and Prospectus. In giving such consent, I do not thereby admit that I am in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Ryan McManis, Esq.
Ryan McManis, Esq.
Chief Legal Officer
Hallador Energy Company
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our reports
dated March 16, 2023 with respect to the consolidated financial statements and internal control over financial reporting of Hallador Energy
Company included in the Annual Report on Form 10-K for the year ended December 31, 2022, which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement, and to the use of
our name as it appears under the caption “Experts.”
/s/ GRANT THORNTON LLP
Tulsa, Oklahoma
November 17, 2023
Exhibit 23.2
Consent
of Independent Registered Public Accounting Firm
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-3/A of Hallador Energy Company (the “Company”) of our report dated March
28, 2022, except for Note 18, as to which the date is March 16, 2023, relating to the financial statements as of and for the year ended
December 31, 2021, which appears on the Company’s Form 10-K filed with the Securities and Exchange Commission on March 16, 2023.
We also consent to the reference to our firm under the caption “Experts” in the prospectus.
/S/PLANTE & MORAN, PLLC
Denver, Colorado
November 17, 2023
Exhibit 23.3
CONSENT
OF INDEPENDENT AUDITOR
We consent to the incorporation
by reference in this Registration Statement on Form S-3/A of Hallador Energy Company of our report dated January 6, 2023, relating to the
financial statements of Merom Generating Station appearing in the Current Report on Form 8-K/A of Hallador Energy Company filed with the
Securities and Exchange Commission on January 6, 2023. We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
/s/ Deloitte & Touche LLP
Indianapolis, Indiana
November 17, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Hallador Energy Company
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File Number |
Carry
Forward
Initial
effective
date |
Filing
Fee
Previously
Paid In
Connection
with Unsold
Securities
to
be Carried
Forward |
Newly
Registered Securities |
Fees
to Be Paid |
Equity |
Common
Stock, par value $0.01 per share |
457(o) |
(1) |
|
(3)
|
|
|
|
|
|
|
Fees
to Be Paid |
Equity |
Preferred
Stock, par value $0.10 per share |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Debt |
Debt
Securities |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Depositary
Shares |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Warrants |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Subscription
Rights |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Purchase
Contracts |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Units |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
|
Universal
Shelf |
n/a |
457(o) |
(1)(2) |
|
$150,000,000(4) |
$ 0.0001102 |
$16,530
(5) |
|
|
|
|
|
Total
Offering Amounts |
|
|
|
|
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
|
|
Total
Fee Offsets |
|
|
|
|
|
|
|
|
|
Net
Fee Due |
|
|
|
|
|
|
|
|
| (1) | An unspecified number of securities or
aggregate principal amount, as applicable, is being registered as may from time to time be
offered at unspecified prices and, in addition, an unspecified number of additional shares
of common stock is being registered as may be issued from time to time upon conversion of
any debt securities that are convertible into common stock or pursuant to any anti-dilution
adjustments with respect to any such convertible debt securities. |
| (2) | Includes rights to acquire common stock
or preferred stock of the Company under any shareholder rights plan then in effect, if applicable
under the terms of any such plan. |
| (3) | An indeterminate aggregate amount of
securities is being registered as may from time to time be offered for sale or sold at indeterminate
prices. |
| (4) | Estimated solely for the purpose of calculating
the registration fee. No separate consideration will be received for shares of common stock
that are issued upon conversion of debt securities, depositary shares or preferred stock
or upon exercise of common stock warrants registered hereunder. The aggregate maximum offering
price of all securities issued pursuant to this registration statement will not exceed $150,000,000. |
| (5) | The registration fee has been calculated
in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
Table 2: Fee Offset Claims and Sources
|
Registrant
or Filer
Name |
Form
or
Filing
Type |
File
Number |
Initial
Filing
Date |
Filing
Date |
Fee
Offset
Claimed |
Security
Type
Associated
with Fee
Offset
Claimed |
Security
Title
Associated
with Fee
Offset
Claimed |
Unsold
Securities
Associated
with Fee
Offset
Claimed |
Unsold
Aggregate
Offering
Amount
Associated
with
Fee
Offset
Claimed |
Fee
Paid
with
Fee
Offset
Source |
Rules 457(b) and
0-11(a)(2) |
Fee
Offset Claims |
|
— |
— |
— |
|
— |
|
|
|
|
|
Fee
Offset Sources |
— |
— |
— |
|
— |
|
|
|
|
|
— |
Rule 457(p) |
Fee
Offset Claims |
— |
— |
— |
— |
|
— |
— |
— |
— |
— |
|
Fee
Offset Sources |
— |
— |
— |
|
— |
|
|
|
|
|
— |
Table 3: Combined Prospectuses
Security
Type |
Security
Class Title |
Amount
of Securities
Previously Registered |
Maximum
Aggregate
Offering Price
of Securities
Previously Registered |
Form Type |
File
Number |
Initial
Effective Date |
— |
— |
— |
— |
— |
— |
— |
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