(Address, including zip code,
and telephone number, including area code, of Registrant’s principal executive offices)
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering: ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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. ☒
Pursuant to Rule 429 under the Securities Act of 1933, as amended
(the “Securities Act”), the prospectus (the “Prospectus”) included in this registration statement on Form S-3
(the “Registration Statement”) is a combined prospectus relating to this Registration Statement and to the registration statement
on Form S-1 (No. 333-262319), initially filed by Heliogen, Inc. on January 24, 2022, and declared effective on February 3, 2022, as most
recently amended by Post-Effective Amendment No. 3 to Form S-1 on Form S-3, filed on March 30, 2023 and declared effective on April 5,
2023 (the “Initial Registration Statement”). The Initial Registration Statement registered:
Pursuant to Rule 429 under the Securities Act, this Registration Statement
also constitutes a post-effective amendment to the Initial Registration Statement (the “Post-Effective Amendment”), and such
Post-Effective Amendment shall hereafter become effective concurrently with the effectiveness of this Registration Statement in accordance
with Section 8(c) of the Securities Act.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by
reference herein and any prospectus supplement delivered with this prospectus may contain forward-looking statements within the meaning
of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). We have based these forward-looking statements on our current expectations and projections about future
events. All statements, other than statements of present or historical fact included in this prospectus regarding our future financial
performance, as well as our strategy, future operations, financial position, estimated revenues, and losses, projected costs, prospects,
plans and objectives of management are forward-looking statements. Any statements that refer to projections, forecasts or other characterizations
of future events or circumstances, including any underlying assumptions, are forward-looking statements. In some cases, you can identify
forward-looking statements by terminology such as “anticipate,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,”
“potential,” “predict,” “project,” “should,” “will,” “would” or
the negative of such terms or other similar expressions. These forward-looking statements are based on management’s current expectations,
assumptions, hopes, beliefs, intentions and strategies regarding future events and are based on currently available information as to
the outcome and timing of future events. We caution you that these forward-looking statements are subject to all of the risks and uncertainties,
most of which are difficult to predict and many of which are beyond our control, incident to our business.
As a result of a number of known and unknown risks
and uncertainties, our actual results or performance may be materially different from those expressed or implied by these forward-looking
statements. Some factors that could cause actual results to differ include:
| ● | our financial and business performance, including risk of
uncertainty in our financial projections and business metrics and any underlying assumptions thereunder; |
| ● | changes in our business and strategy, future operations,
financial position, estimated revenues and losses, projected costs, prospects and plans; |
| ● | our ability to execute our business model, including market
acceptance of our planned products and services and achieving sufficient production volumes at acceptable quality levels and prices; |
| ● | our ability to maintain listing on the New York Stock Exchange
(“NYSE”); |
| ● | changes in domestic and foreign business, market, financial,
political, legal conditions and applicable laws and regulations; |
| ● | our ability to grow market share in our existing markets
or any new markets we may enter; |
| ● | our ability to achieve and maintain profitability in the
future; |
| ● | our ability to access sources of capital to finance operations,
growth and future capital requirements; |
| ● | our ability to maintain and enhance our products and brand,
and to attract and retain customers; |
| ● | our ability to find new partners for product offerings; |
| ● | the success of strategic relationships with third parties; |
| ● | our ability to scale in a cost-effective manner; |
| ● | developments and projections relating to our competitors
and industry; |
| ● | supply chain disruptions; |
| ● | our ability to protect our intellectual property (“IP”); |
| ● | the actions of stockholders and the related impact on the
price of our common stock; |
| ● | expectations regarding the time during which we will be an
emerging growth company under the Jumpstart Our Business Startups Act of 2012, as amended; |
| ● | our ability to find and retain critical employee talent and
key personnel; |
| ● | our ability to successfully manage the transition process
to a new Chief Executive Officer; |
| ● | the possibility that we may be adversely impacted by other
economic, business, and/or competitive factors; |
| ● | future exchange and interest rates; |
| ● | the outcome of any known and unknown litigation and regulatory
proceedings; and |
| ● | other risks and uncertainties, including those under the
section titled “Risk Factors” in this prospectus, and other filings that have been made or will be made with the SEC by the
Company. |
The foregoing list of forward-looking statements
is not exhaustive. Because forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted
or quantified and some of which are beyond our control, you should not rely on these forward-looking statements as predictions of future
events. Although we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus or any documents
incorporated by reference herein and any prospectus supplement, the events and circumstances reflected in our forward-looking statements
may not be achieved or occur and actual results could differ materially from those projected in the forward-looking statements.
Given these risks and uncertainties, you should
not place undue reliance on these forward-looking statements. Additional cautionary statements or discussions of risks and uncertainties
that could affect our results or the achievement of the expectations described in forward-looking statements may also be contained in
any accompanying prospectus supplement.
Should one or more of the risks or uncertainties
described in this prospectus, or should underlying assumptions prove incorrect, actual results and plans could differ materially from
those expressed in any forward-looking statements. Additional information concerning these and other factors that may impact the operations
and projections discussed herein can be found in the section entitled “Risk Factors” and in our periodic filings with the
SEC. Our SEC filings are available publicly on the SEC’s website at www.sec.gov.
You should read this prospectus completely and
with the understanding that our actual future results, levels of activity and performance as well as other events and circumstances may
be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
PROSPECTUS SUMMARY
This summary highlights selected information
contained elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain all of the information that
you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement
and any related free writing prospectus, including the risks of investing in our securities discussed under the sections titled “Risk
Factors” contained in this prospectus, the applicable prospectus supplement and any related free writing prospectus, and under similar
sections in the other documents that are incorporated by reference into this prospectus. You should also carefully read the other information
incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of
which this prospectus is a part.
HELIOGEN, INC.
Overview
Heliogen is a leader in next generation concentrated
solar energy. We are developing a modular, artificial intelligence (“AI”)-enabled, concentrated solar energy plant that will
use an array of mirrors to reflect sunlight and capture, concentrate, store and convert it into cost-effective energy on demand. Our product
offering will deliver industrial process steam around the clock using thermal energy storage based on proven technology. This steam can
also be used to produce green hydrogen when coupled with a solid oxide electrolyzer. Our next generation system will have the ability
to cost-effectively generate and store thermal energy at very high temperatures, which enables cost effective production of electricity
and higher temperature industrial process heat. The inclusion of a thermal energy storage system distinguishes our solution from clean
energy provided by typical photovoltaic (“PV”) and wind installations which do not produce thermal energy and are only able
to produce energy intermittently unless battery storage is added. The system will be configurable for several applications, including
carbon-free industrial-grade heat and steam (for use in industrial processes), clean power (electricity), and generation of green hydrogen,
based on a customer’s needs.
We have developed innovations in the process of
concentrating sunlight which we believe fundamentally improve the potential to efficiently and cost effectively collect and deliver energy
to industrial processes. We believe we will be one of the first technology providers with the ability to deliver cost-effective renewable
energy capable of replacing fossil fuels used in industrial processes that require high temperature heat and/or nearly 24/7 operation.
In addition, we believe our disruptive, patented design and AI technology will address a fundamental problem confronted by many renewable
sources of energy: intermittency. An intermittent power supply does not match the continuous power demand of industry and the grid. Without
storage, wind and PV-based renewable energy generation may rapidly fluctuate between over-supply and under-supply based on resource availability.
As the grid penetration of intermittent resources increases, these fluctuations may become increasingly extreme. We believe our technology
will contribute to solving this problem. Our next generation solar plants will have the ability to store very high temperature energy
in solid media. This energy will then be dispatchable, including during times without sunlight, to cost-effectively deliver near 24/7
carbon-free energy in the form of heat and steam, electric power or green hydrogen fuel.
The three use categories will be configured as follows,
forming the backbone of three business lines:
HelioHeat — The production
of heat or steam for use in industrial processes will be enabled by the baseline system.
HelioPower — With the baseline
system as the foundation, the addition of a turbine generator system will then enable power generation.
HelioFuel — With the baseline
system as the foundation, the addition of an electrolyzer system will enable hydrogen fuel production.
Our technological innovations will enable the delivery
of our HelioHeat, HelioPower and HelioFuel solutions to customers. HelioHeat plants will produce carbon-free heat (e.g., process steam)
to support industrial processes. HelioPower plants will deliver solar thermal energy to a heat engine to produce electrical power. HelioFuel
plants will couple HelioHeat and HelioPower technology with an electrolyzer to produce green hydrogen fuel. All three solutions will be
enabled by Heliogen’s proprietary heliostat design and AI technology, and will integrate thermal energy storage to enable operation
nearly 24/7, overcoming the intermittency of other solar energy technologies.
For each of the three above
solutions, we are offering multiple support models to customers looking to deploy Heliogen’s technology:
| ● | Contracting
with owner-operators to build turnkey facilities that deploy Heliogen’s technology
(Heliogen will contract with engineering, procurement and construction (“EPC”)
partners for constructing the facility); |
| ● | Selling
heliostats (and associated software control systems) to owner-operators and/or EPC contractors; |
| ● | Providing
asset maintenance support services during operation, for completed facilities that use Heliogen’s
technology; and |
| ● | Providing
project development support services to help customers advance readiness to break ground
in advance of final investment decisions. |
In the future, we will also
be prepared to offer Heliogen’s IP through a licensing model to third parties interested in manufacturing and installing the hardware.
Corporate Information
Heliogen, Inc. (formerly
known as Athena Technology Acquisition Corp., or “Athena”) was a blank check or “special purpose acquisition”
company, incorporated as a Delaware corporation on December 8, 2020, and formed for the purpose of effecting a merger, capital stock
exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. Athena completed
its initial public offering in March 2021. HelioMax Merger Sub, Inc., a Delaware corporation, was a wholly-owned subsidiary of Athena,
formed by Athena on May 27, 2021 to consummate the Business Combination. On December 30, 2021, HelioMax Merger Sub merged with
and into Heliogen Holdings, Inc. (formerly known as Heliogen, Inc.) whereupon the separate corporate existence of Merger Sub ceased with
Heliogen Holdings, Inc. continuing as the surviving corporation and a subsidiary of Athena. Upon the closing of the business combination,
Athena changed its name to Heliogen, Inc. The mailing address of our principal executive office is 130 West Union St., Pasadena, California
91103. Our telephone number is (626) 720-4530.
“Heliogen” and
our other registered and common law trade names, trademarks and service marks are property of Heliogen, Inc. This prospectus contains
additional trade names, trademarks and service marks of others, which are the property of their respective owners. Solely for convenience,
trademarks and trade names referred to in this prospectus may appear without the ® or ™ symbols.
The Securities We May Offer
We may offer any securities
described in this prospectus, either individually or in combination with other securities, up to a total dollar amount of $150,000,000,
from time to time under this prospectus, together with the applicable prospectus supplement and any related free writing prospectus,
at prices and on terms to be determined by market conditions at the time of any offering. In addition, we may issue up to 8,496,666 shares
of common stock upon the exercise by the holders thereof of the Warrants. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
| ● | designation or classification; |
| ● | aggregate principal amount or aggregate offering price; |
| ● | maturity date, if applicable; |
| ● | original issue discount, if any; |
| ● | rates and times of payment of interest or dividends, if any; |
| ● | redemption, conversion, exercise, exchange or sinking fund terms,
if any; |
| ● | restrictive covenants, if any; |
| ● | voting or other rights, if any; |
| ● | conversion or exchange prices or
rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion
or exchange prices or rates and in the securities or other property receivable upon conversion
or exchange; and |
| ● | material
or special U.S. federal income tax considerations, if any. |
The applicable prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of
the information contained in this prospectus or in the documents we have incorporated by reference.
We may sell the securities
directly to investors or to or through agents, underwriters or dealers. We and our agents or underwriters, reserve the right to accept
or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters, we will
include in the applicable prospectus supplement:
| ● | the names of those agents or underwriters; |
| ● | applicable fees, discounts and commissions to be paid to them; |
| ● | details regarding overallotment options, if any; and |
Securities Offered by the Selling Securityholders
We are registering the resale by the Selling
Securityholders named in this prospectus, or their permitted transferees of (i) up to an aggregate of 77,857,430
shares of common and (ii) up to 163,333 Private Warrants, previously issued
to the selling stockholders named therein. The Warrants are redeemable in certain circumstances. See the section entitled “Description
of Capital Stock — Warrants” for further discussion. The Selling Securityholders will determine when and how they
will dispose of the securities registered for resale under this prospectus.
Use of Proceeds
Except as described in any
applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific
offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any, for working
capital and general corporate purposes. We will set forth in the applicable prospectus supplement or free writing prospectus our
intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus supplement or free
writing prospectus. All of the securities offered
by the Selling Securityholders pursuant to this prospectus will be sold by the Selling Securityholders for their respective accounts.
We will not receive any of the proceeds from these sales.
New York Stock Exchange Listing
Our common stock and Public
Warrants are listed on the New York Stock Exchange under the symbols “HLGN” and “HLGN.W,” respectively. The applicable
prospectus supplement will contain information, where applicable, as to other listings, if any, on the New York Stock Exchange or any
other securities market or other exchange of the securities covered by the applicable prospectus supplement.
RISK FACTORS
Investing in our securities
involves risks. Before you make a decision to buy our securities, in addition to the risks and uncertainties discussed above under “Special
Note Regarding Forward-Looking Statements,” you should carefully consider the specific risks set forth herein. If any
of these risks actually occur, it may materially harm our business, financial condition, liquidity incorporated by reference to our most
recent Annual Report on Form 10-K, any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other information
contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the
risk factors and other information contained in any applicable prospectus supplement before acquiring any of such securities. Additional
risks and uncertainties not presently known to us or that we currently believe to be immaterial may become material and adversely affect
our business. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
USE OF PROCEEDS
Except as described in any
applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering,
we currently intend to use the net proceeds from the sale of securities offered by us for working capital and general corporate purposes.
We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from
the sale of any securities sold by us pursuant to the prospectus supplement or free writing prospectus. We intend to invest the net proceeds
to us from the sale of securities offered by us hereby that are not used as described above in short-term, investment-grade, interest-bearing
instruments.
All of the securities offered
by the Selling Securityholders pursuant to this prospectus will be sold by the Selling Securityholders for their respective accounts.
We will not receive any of the proceeds from these sales.
DESCRIPTION OF
CAPITAL STOCK
The following summary description is based
on the provisions of our second amended and restated certificate of incorporation (“Certificate of Incorporation”), our second
amended and restated bylaws (“Bylaws”), warrant agreements governing our outstanding Warrants (including that certain Warrant
Agreement, dated March 16, 2021, by and between Athena and Continental Stock Transfer & Trust Company, the “Warrant Agreement”),
and the applicable provisions of the Delaware General Corporation Law (the “DGCL”). This information may not be complete
in all respects and is qualified entirely by reference to the provisions of our Certificate of Incorporation and Bylaws, and is qualified
in its entirety by reference to our Certificate of Incorporation and our Bylaws which are incorporated by reference into the registration
statement of which this prospectus is a part.
General
Our Certificate of Incorporation authorizes
the issuance of 500,000,000 shares of common stock, $0.0001 par value per share and 10,000,000 shares of preferred stock, $0.0001 par
value per share. As of May 8, 2023, there were 196,895,138 shares of common stock issued and outstanding, which shares were held
by 460 stockholders of record, and no shares of preferred stock outstanding. The following description summarizes certain terms
of our capital stock as set out more particularly in our Certificate of Incorporation. The rights, preferences and privileges of holders
of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred
stock that we may issue in the future.
Common Stock
Voting Rights
Except as otherwise required by law or as otherwise
provided in any certificate of designation for any series of preferred stock, the holders of our common stock possess all voting power
for the election of our directors and all other matters requiring stockholder act on. Holders of our common stock are entitled to one
vote per share on matters to be voted on by stockholders.
Dividend Rights
Subject to preferences that may apply to any then-outstanding
preferred stock, holders of our common stock are entitled to receive ratable dividends when, as and if declared by our board of directors
(the “Board”) out of funds legally available therefor. We do not anticipate paying any cash dividends in the foreseeable
future.
Liquidation
In the event of our voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up, the holders of our common stock will be entitled to receive an equal amount per share
of all of our assets of whatever kind available for distribution to stockholders, after the rights of the holders of any preferred stock
have been satisfied.
Preemptive or Similar Rights
Holders of our common stock have no conversion,
preemptive or other subscription rights and there will be no sinking fund or redemption provisions applicable to our common stock.
Election of Directors
Our Board is divided into three classes, Class
I, Class II and Class III, with members of each class serving staggered three-year terms with only one class of directors being elected
in each year. There is no cumulative voting with respect to the election of directors, with the result that the holders of more than
50% of the shares voted for the election of directors can elect all of the directors.
Preferred Stock
Under our Certificate of Incorporation, our Board
may, without further action by our stockholders, fix the rights, preferences, privileges and restrictions of up to an aggregate of 10,000,000
shares of preferred stock in one or more series and authorize their issuance. These rights, preferences and privileges could include
dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences and the number of shares constituting
any series or the designation of such series, any or all of which may be greater than the rights of common stock. Any issuance of preferred
stock could adversely affect the voting power of holders of common stock and the likelihood that such holders would receive dividend
payments and payments on liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deterring or preventing
a change of control or other corporate action.
We will fix the designations, voting powers,
preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations
or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement
of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate
of designation that contains the terms of the series of preferred stock we are offering. We will describe in the applicable prospectus
supplement the terms of the series of preferred stock being offered, including, to the extent applicable:
| ● | the title and stated value; |
| ● | the number of shares we are offering; |
| ● | the liquidation preference per share; |
| ● | the dividend rate, period and payment date and method of calculation
for dividends; |
| ● | whether dividends will be cumulative or non-cumulative and,
if cumulative, the date from which dividends will accumulate; |
| ● | the procedures for any auction and remarketing, if applicable; |
| ● | the provisions for a sinking fund, if applicable; |
| ● | the provisions for redemption or repurchase, if applicable,
and any restrictions on our ability to exercise those redemption and repurchase rights; |
| ● | any listing of the preferred stock on any securities exchange
or market; |
| ● | whether the preferred stock will be convertible into our common
stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion
period; |
| ● | whether the preferred stock will be exchangeable into debt securities,
and, if applicable, the exchange price, or how it will be calculated, and the exchange period; |
| ● | voting rights of the preferred stock; |
| ● | preemptive rights, if any; |
| ● | restrictions on transfer, sale or other assignment; |
| ● | whether interests in the preferred stock will be represented
by depositary shares; |
| ● | a discussion of any material or special U.S. federal income
tax considerations applicable to the preferred stock; |
| ● | the relative ranking and preferences of the preferred stock
as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; |
| ● | any limitations on the issuance of any class or series of preferred
stock ranking senior to or on a parity with the series of preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our affairs; and |
| ● | any other specific terms, preferences, rights or limitations
of, or restrictions on, the preferred stock. |
The transfer agent for each series of preferred
stock will be described in the applicable prospectus supplement.
Warrants
At May 8, 2023, there were 8,566,666 Warrants
to purchase common stock outstanding, consisting of 8,333,333 Public Warrants and 233,333 Private Warrants. The Private Warrants are
held by the initial stockholders of Athena. Each Warrant entitles the registered holder to purchase one share of common stock at a price
of $11.50 per share at any time. The Warrants will expire on December 30, 2026, or earlier upon redemption or liquidation.
Public Warrants
Each whole Public Warrant entitles the registered
holder to purchase one share of common stock at a price of $11.50 per share, subject to adjustment as discussed below, provided in each
case that we have an effective registration statement under the Securities Act covering the shares of common stock issuable upon exercise
of the Public Warrants and a current prospectus relating to them is available (or we permit holders to exercise their Public Warrants
on a cashless basis under the circumstances specified in the warrant agreement) and such shares are registered, qualified or exempt from
registration under the securities, or blue sky, laws of the state of residence of the holder. Pursuant to the warrant agreement, a Public
Warrant holder may exercise its Public Warrants only for a whole number of shares of common stock. The Public Warrants will expire five
years after the closing of our business combination on December 30, 2021 (the “Closing”), at 5:00 p.m., New York City time,
or earlier upon redemption or liquidation.
We will not be obligated to deliver any common
stock pursuant to the exercise of a Public Warrant and will have no obligation to settle such warrant exercise unless a registration
statement under the Securities Act with respect to the common stock underlying the Public Warrants is then effective and a prospectus
relating thereto is current, subject to our satisfying our obligations described below with respect to registration. No Public Warrant
will be exercisable and we will not be obligated to issue a share of common stock upon exercise of a warrant unless the share of common
stock issuable upon such warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the state
of residence of the registered holder of the Public Warrants. In the event that the conditions in the two immediately preceding sentences
are not satisfied with respect to a Public Warrant, the holder of such Public Warrant will not be entitled to exercise such Public Warrant
and such Public Warrant may have no value and expire worthless. In no event will we be required to net cash settle any Public Warrant.
In the event that a registration statement is not effective for the exercised warrants, the purchaser of a unit containing such Public
Warrant will have paid the full purchase price for the unit solely for the share of common stock underlying such unit.
We have filed with the SEC a registration statement
for the registration, under the Securities Act, of the common stock issuable upon exercise of the Public Warrants. We have agreed to
use our best efforts to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the
expiration of the Public Warrants in accordance with the provisions of the warrant agreement. If a registration statement covering the
shares of common stock issuable upon exercise of the Public Warrants is not effective by the 60th business day after the Closing,
warrant holders may, until such time as there is an effective registration statement and during any period when we will have failed to
maintain an effective registration statement, exercise warrants on a “cashless basis” in accordance with Section 3(a)(9)
of the Securities Act or another exemption. Notwithstanding the above, if our common stock are at the time of any exercise of a warrant
not listed on a national securities exchange such that they satisfy the definition of a “covered security” under Section
18(b)(1) of the Securities Act, we may, at our option, require holders of the Public Warrants who exercise their warrants to do so on
a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act and, in the event we so elect, we will not be
required to file or maintain in effect a registration statement, and in the event we do not so elect, we will use our best efforts to
register or qualify the shares under applicable blue sky laws to the extent an exemption is not available.
Redemption of Public Warrants
Redemption of Public Warrants for cash. Once
the Public Warrants become exercisable, we may call the Public Warrants for redemption for cash:
| ● | in whole and not in part; |
| ● | at a price of $0.01 per Public Warrant; |
| ● | upon not less than 30 days’ prior written notice of redemption
to each warrant holder; and |
| ● | if, and only if, the closing price of the common stock equals
or exceeds $18.00 per share (as adjusted for stock splits, stock capitalizations, reorganizations,
recapitalizations and the like) for any 20 trading days within a 30-trading day period commencing
once the Public Warrants become exercisable and ending three business days before we send
to the notice of redemption to the warrant holders. |
If and when the Public Warrants become redeemable
by us for cash, we may exercise our redemption right even if we are unable to register or qualify the underlying securities for sale
under all applicable state securities laws.
We have established the last of the redemption
criterion discussed above to prevent a redemption call unless there is at the time of the call a significant premium to the warrant exercise
price. If the foregoing conditions are satisfied and we issue a notice of redemption of the Public Warrants, each warrant holder is entitled
to exercise his, her or its Public Warrant prior to the scheduled redemption date. However, the price of the common stock may fall below
the $18.00 redemption trigger price (as adjusted for stock splits, stock capitalizations, reorganizations, recapitalizations and the
like) as well as the $11.50 warrant exercise price after the redemption notice is issued.
Redemption of Public Warrants for common stock. Commencing
ninety days after the Public Warrants become exercisable, we may redeem the outstanding Public Warrants:
| ● | in whole and not in part; |
| ● | at $0.10 per Public Warrant upon a minimum of 30 days’
prior written notice of redemption provided that holders are able to exercise their Public
Warrant prior to redemption and receive that number of shares determined by reference to
the table below, based on the redemption date and the “fair market value” of
our common stock except as otherwise described below; |
| ● | if, and only if, the last reported sale price of our common
stock equals or exceeds $10.00 per share (as adjusted for stock splits, stock dividends,
reorganizations, recapitalizations and the like) on the trading day prior to the date on
which we send the notice of redemption to the warrant holders; |
| ● | if,
and only if, the Private Warrants are also concurrently exchanged at the same price (equal
to a number of shares of common stock) as the outstanding Public Warrants, as described above;
and |
| ● | if, and only if, there is an effective registration statement
covering the issuance of the shares of common stock issuable upon exercise of the Public
Warrants and a current prospectus relating thereto available throughout the 30-day period
after written notice of redemption is given. |
The numbers in the table below represent the number
of shares of common stock that a warrant holder will receive upon exercise in connection with a redemption by us pursuant to this redemption
feature, based on the “fair market value” of our common stock on the corresponding redemption date (assuming holders elect
to exercise their Public Warrants and such Public Warrants are not redeemed for $0.10 per warrant), determined based on the average of
the last reported sales price for the 10 trading days ending on the third trading day prior to the date on which the notice of redemption
is sent to the holders of Public Warrants, and the number of months that the corresponding redemption date precedes the expiration date
of the Public Warrants, each as set forth in the table below.
The stock prices set forth in the column headings
of the table below will be adjusted as of any date on which the number of shares issuable upon exercise of a Public Warrant is adjusted
as set forth in the first three paragraphs under the heading “— Anti-dilution Adjustments” below. The adjusted
stock prices in the column headings will equal the stock prices immediately prior to such adjustment, multiplied by a fraction, the numerator
of which is the number of shares deliverable upon exercise of a Public Warrant immediately prior to such adjustment and the denominator
of which is the number of shares deliverable upon exercise of a Public Warrant as so adjusted. The number of shares in the table below
shall be adjusted in the same manner and at the same time as the number of shares issuable upon exercise of a Public Warrant.
Redemption Date (period | |
Fair Market Value of Common Stock | |
to expiration of warrants) | |
≤$10.00 | | |
$11.00 | | |
$12.00 | | |
$13.00 | | |
$14.00 | | |
$15.00 | | |
$16.00 | | |
$17.00 | | |
≥$18.00 | |
| |
| | |
| | |
| | |
| | |
| | |
| | |
| | |
| | |
| |
45 months | |
| 0.235 | | |
| 0.258 | | |
| 0.279 | | |
| 0.298 | | |
| 0.315 | | |
| 0.330 | | |
| 0.343 | | |
| 0.356 | | |
| 0.361 | |
42 months | |
| 0.228 | | |
| 0.252 | | |
| 0.274 | | |
| 0.294 | | |
| 0.312 | | |
| 0.328 | | |
| 0.342 | | |
| 0.355 | | |
| 0.361 | |
39 months | |
| 0.221 | | |
| 0.246 | | |
| 0.269 | | |
| 0.290 | | |
| 0.309 | | |
| 0.325 | | |
| 0.340 | | |
| 0.354 | | |
| 0.361 | |
36 months | |
| 0.213 | | |
| 0.239 | | |
| 0.263 | | |
| 0.285 | | |
| 0.305 | | |
| 0.323 | | |
| 0.339 | | |
| 0.353 | | |
| 0.361 | |
33 months | |
| 0.205 | | |
| 0.232 | | |
| 0.257 | | |
| 0.280 | | |
| 0.301 | | |
| 0.320 | | |
| 0.337 | | |
| 0.352 | | |
| 0.361 | |
30 months | |
| 0.196 | | |
| 0.224 | | |
| 0.250 | | |
| 0.274 | | |
| 0.297 | | |
| 0.316 | | |
| 0.335 | | |
| 0.351 | | |
| 0.361 | |
27 months | |
| 0.185 | | |
| 0.214 | | |
| 0.242 | | |
| 0.268 | | |
| 0.291 | | |
| 0.313 | | |
| 0.332 | | |
| 0.350 | | |
| 0.361 | |
24 months | |
| 0.173 | | |
| 0.204 | | |
| 0.233 | | |
| 0.260 | | |
| 0.285 | | |
| 0.308 | | |
| 0.329 | | |
| 0.348 | | |
| 0.361 | |
21 months | |
| 0.161 | | |
| 0.193 | | |
| 0.223 | | |
| 0.252 | | |
| 0.279 | | |
| 0.304 | | |
| 0.326 | | |
| 0.347 | | |
| 0.361 | |
18 months | |
| 0.146 | | |
| 0.179 | | |
| 0.211 | | |
| 0.242 | | |
| 0.271 | | |
| 0.298 | | |
| 0.322 | | |
| 0.345 | | |
| 0.361 | |
15 months | |
| 0.130 | | |
| 0.164 | | |
| 0.197 | | |
| 0.230 | | |
| 0.262 | | |
| 0.291 | | |
| 0.317 | | |
| 0.342 | | |
| 0.361 | |
12 months | |
| 0.111 | | |
| 0.146 | | |
| 0.181 | | |
| 0.216 | | |
| 0.250 | | |
| 0.282 | | |
| 0.312 | | |
| 0.339 | | |
| 0.361 | |
9 months | |
| 0.090 | | |
| 0.125 | | |
| 0.162 | | |
| 0.199 | | |
| 0.237 | | |
| 0.272 | | |
| 0.305 | | |
| 0.336 | | |
| 0.361 | |
6 months | |
| 0.065 | | |
| 0.099 | | |
| 0.137 | | |
| 0.178 | | |
| 0.219 | | |
| 0.259 | | |
| 0.296 | | |
| 0.331 | | |
| 0.361 | |
3 months | |
| 0.034 | | |
| 0.065 | | |
| 0.104 | | |
| 0.150 | | |
| 0.197 | | |
| 0.243 | | |
| 0.286 | | |
| 0.326 | | |
| 0.361 | |
0 months | |
| — | | |
| — | | |
| 0.042 | | |
| 0.115 | | |
| 0.179 | | |
| 0.233 | | |
| 0.281 | | |
| 0.323 | | |
| 0.361 | |
The exact fair market value and redemption date
may not be set forth in the table above, in which case, if the fair market value is between two values in the table or the redemption
date is between two redemption dates in the table, the number of shares of common stock to be issued for each Public Warrant exercised
will be determined by a straight-line interpolation between the number of shares set forth for the higher and lower fair market values
and the earlier and later redemption dates, as applicable, based on a 365 or 366-day year, as applicable. For example, if the average
last reported sale price of our common stock for the 10 trading days ending on the third trading date prior to the date on which the
notice of redemption is sent to the holders of the Public Warrants is $11.00 per share, and at such time there are 42 months until the
expiration of the Public Warrants, holders may choose to, in connection with this redemption feature, exercise their Public Warrants
for 0.252 common stock for each whole Public Warrant. For an example where the exact fair market value and redemption date are not as
set forth in the table above, if the average last reported sale price of our common stock for the 10 trading days ending on the third
trading date prior to the date on which the notice of redemption is sent to the holders of the warrants is $13.50 per share, and at such
time there are 38 months until the expiration of the warrants, holders may choose to, in connection with this redemption feature, exercise
their Public Warrants for 0.298 common stock for each whole Public Warrant. In no event will the Public Warrants be exercisable in connection
with this redemption feature for more than 0.361 shares of common stock per Public Warrant. Finally, as reflected in the table above,
if the Public Warrants are out of the money and about to expire, they cannot be exercised on a cashless basis in connection with a redemption
by us pursuant to this redemption feature, since they will not be exercisable for any shares of common stock.
This redemption feature differs from the typical
warrant redemption features used in other blank check offerings, which typically only provide for a redemption of warrants for cash (other
than the Private Warrants) when the trading price for the common stock exceeds $18.00 per share for a specified period of time.
This redemption feature is structured to allow
for all of the outstanding Public Warrants to be redeemed when the common stock is trading at or above $10.00 per share, which may be
at a time when the trading price of our common stock is below the exercise price of the Public Warrants. We have established this redemption
feature to provide us with the flexibility to redeem the Public Warrants without the Public Warrants having to reach the $18.00 per share
threshold set forth above under “— Redemption of Public Warrants for cash.” Holders choosing to exercise
their Public Warrants in connection with a redemption pursuant to this feature will, in effect, receive a number of shares for their
Public Warrants based on an option pricing model with a fixed volatility input as of the date of this prospectus. This redemption right
provides us with an additional mechanism by which to redeem all of the outstanding Public Warrants, and therefore have certainty as to
our capital structure as the Public Warrants would no longer be outstanding and would have been exercised or redeemed and we will be
required to pay the redemption price to warrant holders if we choose to exercise this redemption right and it will allow us to quickly
proceed with a redemption of the Public Warrants if we determine it is in our best interest to do so. As such, we would redeem the Public
Warrants in this manner when we believe it is in our best interest to update our capital structure to remove the Public Warrants and
pay the redemption price to the warrant holders.
As stated above, we can redeem the Public Warrants
when the common stock is trading at a price starting at $10.00, which is below the exercise price of $11.50, because it will provide
certainty with respect to our capital structure and cash position while providing warrant holders with the opportunity to exercise their
Public Warrants on a cashless basis for the applicable number of shares. If we choose to redeem the Public Warrants when the common stock
is trading at a price below the exercise price of the Public Warrants, this could result in the warrant holders receiving fewer common
stock than they would have received if they had chosen to wait to exercise their Public Warrants for common stock if and when such Common
were trading at a price higher than the exercise price of $11.50.
No fractional shares of common stock will be issued
upon exercise. If, upon exercise, a holder would be entitled to receive a fractional interest in a share, we will round down to the nearest
whole number of the number of common stock to be issued to the holder. If, at the time of redemption, the Public Warrants are exercisable
for a security other than the shares of common stock pursuant to the warrant agreement, the Public Warrants may be exercised for such
security.
Redemption procedures and cashless exercise. If
we call the Public Warrants for redemption as described above under “— Redemption of Public Warrants for cash,”
management will have the option to require any holder that wishes to exercise his, her or its Public Warrants to do so on a “cashless
basis.” In determining whether to require all holders to exercise their Public Warrants on a “cashless basis,” our
management will consider, among other factors, our cash position, the number of Public Warrants that are outstanding and the dilutive
effect on our stockholders of issuing the maximum number of shares of common stock issuable upon the exercise of our Public Warrants.
If our management takes advantage of this option, all holders of Public Warrants would pay the exercise price by surrendering their Public
Warrants for that number of shares of common stock equal to the lesser of (A) the quotient obtained by dividing (x) the product of the
number of shares of common stock underlying the Public Warrants, multiplied by the excess of the “fair market value” (defined
below) over the exercise price of the Public Warrants by (y) the fair market value and (B) 0.361 per Public Warrant. The “fair
market value” shall mean the average last reported sale price of shares of the common stock for the 10 trading days ending on the
third trading day prior to the date on which the notice of redemption is sent to the holders of Public Warrants. If our management takes
advantage of this option, the notice of redemption will contain the information necessary to calculate the number of shares of common
stock to be received upon exercise of the Public Warrants, including the “fair market value” in such case. Requiring a cashless
exercise in this manner will reduce the number of shares to be issued and thereby lessen the dilutive effect of a warrant redemption.
We believe this feature is an attractive option to us if we do not need the cash from the exercise of the Public Warrants.
A holder of a Public Warrant may notify us in writing
in the event it elects to be subject to a requirement that such holder will not have the right to exercise such Public Warrant, to the
extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the warrant agent’s
actual knowledge, would beneficially own in excess of 9.8% (or such other amount as a holder may specify) of the shares of common stock
outstanding immediately after giving effect to such exercise.
Anti-dilution Adjustments. If the number
of outstanding shares of our common stock is increased by a stock dividend payable in shares of common stock to all or substantially
all holders of common stock, or by a split-up of shares of common stock or other similar event, then, on the effective date of such stock
dividend, split-up or similar event, the number of shares of common stock issuable on exercise of each Public Warrant will be increased
in proportion to such increase in the outstanding shares of common stock. A rights offering to holders of shares of common stock entitling
holders to purchase shares of common stock at a price less than the fair market value will be deemed a stock dividend of a number of
shares of common stock equal to the product of (i) the number of shares of common stock actually sold in such rights offering (or issuable
under any other equity securities sold in such rights offering that are convertible into or exercisable for common stock) multiplied
by (ii) one (1) minus the quotient of (x) the price per share of common stock paid in such rights offering divided by (y) the fair market
value. For these purposes (i) if the rights offering is for securities convertible into or exercisable for common stock, in determining
the price payable for common stock, there will be taken into account any consideration received for such rights, as well as any additional
amount payable upon exercise or conversion and (ii) fair market value means the volume weighted average price of common stock as reported
during the ten (10) trading day period ending on the trading day prior to the first date on which the shares of common stock trade on
the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
In addition, if we, at any time while the Public
Warrants are outstanding and unexpired, pay a dividend or make a distribution in cash, securities or other assets to all or substantially
all holders of common stock on account of such shares of common stock (or other shares of our capital stock into which the Public Warrants
are convertible), other than (a) as described above or (b) certain ordinary cash dividends, then the warrant exercise price will be decreased,
effective immediately after the effective date of such event, by the amount of cash and/or the fair market value of any securities or
other assets paid on each share of common stock in respect of such event.
If the number of outstanding shares of common stock
is decreased by a consolidation, combination, reverse share split or reclassification of common stock or other similar event, then, on
the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of shares of
common stock issuable on exercise of each Public Warrant will be decreased in proportion to such decrease in outstanding share of common
stock.
Whenever the number of shares of common stock purchasable
upon the exercise of the Public Warrants is adjusted, as described above, the warrant exercise price will be adjusted by multiplying
the warrant exercise price immediately prior to such adjustment by a fraction (x) the numerator of which will be the number of shares
of common stock purchasable upon the exercise of the Public Warrants immediately prior to such adjustment, and (y) the denominator of
which will be the number of shares of common stock so purchasable immediately thereafter.
In case of any reclassification or reorganization
of the outstanding shares of common stock (other than those described above or that solely affects the par value of such shares of common
stock), or in the case of any merger or consolidation of us with or into another corporation (other than a consolidation or merger in
which we are the continuing corporation and that does not result in any reclassification or reorganization of our outstanding shares of
common stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of us as an entirety
or substantially as an entirety in connection with which we are dissolved, the holders of the Public Warrants will thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions specified in the Public Warrants and in lieu of our shares
of common stock immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount
of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation,
or upon a dissolution following any such sale or transfer, that the holder of the Public Warrants would have received if such holder had
exercised their Public Warrants immediately prior to such event. However, if such holders were entitled to exercise a right of election
as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of
securities, cash or other assets for which each Public Warrant will become exercisable will be deemed to be the weighted average of the
kind and amount received per share by such holders in such consolidation or merger that affirmatively make such election, and if a tender,
exchange or redemption offer has been made to and accepted by such holders (other than a tender, exchange or redemption offer made by
the company in connection with redemption rights held by stockholders of the company as provided for in the Company’s Certificate
of Incorporation or Bylaws or as a result of the redemption of common stock by the company if a proposed initial business combination
is presented to the stockholders of the company for approval) under circumstances in which, upon completion of such tender or exchange
offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which
such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange
Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule
13d-3 under the Exchange Act) more than 50% of the outstanding common stock, the holder of a Public Warrant will be entitled to receive
the highest amount of cash, securities or other property to which such holder would actually have been entitled as a stockholder if such
warrant holder had exercised the Public Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all
of the common stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustment (from and
after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in the warrant
agreement. Additionally, if less than 70% of the consideration receivable by the holders of common stock in such a transaction is payable
in the form of common stock in the successor entity that is listed for trading on a national securities exchange or is quoted in an established
over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the registered holder of
the Public Warrant properly exercises the Public Warrant within thirty days following public disclosure of such transaction, the warrant
exercise price will be reduced as specified in the warrant agreement based on the per share consideration minus the Black-Scholes Warrant
Value (as defined in the Warrant Agreement) of the Public Warrant.
The warrant agreement provides that the terms of
the Public Warrants may be amended without the consent of any holder to cure any ambiguity or correct any defective provision, but requires
the approval by the holders of at least 50% of the then outstanding Public Warrants to make any change that adversely affects the interests
of the registered holders of Public Warrants.
The warrant holders do not have the rights or privileges
of holders of common stock and any voting rights until they exercise their Public Warrants and receive shares of common stock. After the
issuance of shares of common stock upon exercise of the Public Warrants, each holder is entitled to one vote for each share held of record
on all matters to be voted on by stockholders.
The Public Warrants may be exercised upon surrender
of the warrant certificate on or prior to the expiration date at the offices of the warrant agent, with the exercise form on the reverse
side of the warrant certificate completed and executed as indicated, accompanied by full payment of the exercise price (or on a cashless
basis, if applicable), by certified or official bank check payable to us, for the number of Public Warrants being exercised.
No fractional shares will be issued upon exercise
of the Public Warrants. If, upon exercise of the Public Warrants, a holder would be entitled to receive a fractional interest in a share,
we will, upon exercise, round down to the nearest whole number the number of shares of common stock to be issued to the warrant holder.
Dividends
We have not paid any cash
dividends on our common stock to date. The payment of cash dividends in the future will be dependent upon our revenues and earnings, if
any, capital requirements, general financial condition, contractual restrictions and other factors that our Board may deem relevant and
will be within the discretion of our Board at such time. In addition, our ability to pay dividends may be limited by covenants of any
existing and future outstanding indebtedness that we or our subsidiaries incur. We do not anticipate declaring any cash dividends to holders
of common stock in the foreseeable future.
Certain Anti-Takeover Provisions of Delaware Law and our Certificate
of Incorporation and Bylaws
We are subject to the provisions of Section 203
of the DGCL regulating corporate takeovers. This statute prevents certain Delaware corporations, under certain circumstances, from engaging
in a “business combination” with:
| ● | a stockholder who owns 15% or more of our outstanding voting stock (otherwise known as an “interested stockholder”); |
| ● | an affiliate of an interested stockholder; or |
| ● | an associate of an interested stockholder, for three years following the date that the stockholder became an interested stockholder. |
A “business combination” includes a
merger or sale of more than 10% of our assets. However, the above provisions of Section 203 do not apply if:
| ● | our Board approves the transaction that made the stockholder an “interested stockholder,” prior to the date of the transaction; |
| ● | after the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned
at least 85% of our voting stock outstanding at the time the transaction commenced, other than statutorily excluded shares of common stock;
or |
| ● | on or subsequent to the date of the transaction, the business combination is approved by our Board and authorized at a meeting of
our stockholders, and not by written consent, by an affirmative vote of at least two-thirds of the outstanding voting stock not owned
by the interested stockholder. |
Our Certificate of Incorporation provides that our
Board is classified into three classes of directors. As a result, in most circumstances, a person can gain control of our Board only by
successfully engaging in a proxy contest at two or more annual meetings.
Our authorized but unissued common stock and preferred
stock are available for future issuances without stockholder approval and could be utilized for a variety of corporate purposes, including
future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved
common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest,
tender offer, merger or otherwise.
Exclusive forum for certain lawsuits
Our Certificate of Incorporation requires that,
unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Court
of Chancery”) shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative
action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer
or other employee to us or our stockholders, (iii) any action asserting a claim against us, our directors, officers or employees arising
pursuant to any provision of the DGCL or our Certificate of Incorporation or Bylaws, or (iv) any action asserting a claim against us,
our directors, officers or employees governed by the internal affairs doctrine and, if brought outside of Delaware, the stockholder bringing
the suit will be deemed to have consented to service of process on such stockholder’s counsel, except any action (A) as to which
the Court of Chancery of the State of Delaware determines that there is an indispensable party not subject to the jurisdiction of the
Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days
following such determination), (B) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery,
or (C) for which the Court of Chancery does not have subject matter jurisdiction. Although we believe this provision benefits us by providing
increased consistency in the application of Delaware law in the types of lawsuits to which it applies, a court may determine that this
provision is unenforceable, and to the extent it is enforceable, the provision may have the effect of discouraging lawsuits against our
directors and officers, although our stockholders will not be deemed to have waived our compliance with federal securities laws and the
rules and regulations promulgated thereunder.
Notwithstanding the foregoing, our Certificate of
Incorporation provides that the exclusive forum provision will not apply to suits brought to enforce any liability or duty created by
the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. Section 27 of the Exchange Act creates exclusive
federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations
thereunder.
Additionally, unless we consent in writing to the
selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted
by law, be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act against
us or any of our directors, officers, other employees or agents. Section 22 of the Securities Act, however, created concurrent jurisdiction
for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations
thereunder. Accordingly, there is uncertainty as to whether a court would enforce these exclusive forum provisions, and the enforceability
of similar choice of forum provisions in other companies’ charter documents has been challenged in legal proceedings. While the
Delaware courts have determined that such exclusive forum provisions are facially valid, a stockholder may nevertheless seek to bring
a claim in a venue other than those designated in the exclusive forum provisions, and there can be no assurance that such provisions will
be enforced by a court in those other jurisdictions. Any person or entity purchasing or otherwise acquiring any interest in our securities
shall be deemed to have notice of and consented to these provisions; however, we note that investors cannot waive compliance with the
federal securities laws and the rules and regulations thereunder.
Special meeting of stockholders
Our Bylaws provide that special meetings of our
stockholders may be called only by a majority vote of our Board, by our Chief Executive Officer or by our Chairman, or the Board.
Advance notice requirements for stockholder proposals and director
nominations
Our Bylaws provide that stockholders seeking to
bring business before our annual meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of
stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder’s notice will need to be received
by the company secretary at our principal executive offices not later than the close of business on the 90th day nor earlier than
the opening of business on the 120th day prior to the anniversary date of the immediately preceding annual meeting of stockholders.
Pursuant to Rule 14a-8 of the Exchange Act, proposals seeking inclusion in our annual proxy statement must comply with the notice periods
contained therein. Our Bylaws also specify certain requirements as to the form and content of a stockholders’ meeting. These provisions
may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors
at our annual meeting of stockholders.
Action by written consent
Any action required or permitted to be taken by
holders of our common stock must be effected by a duly called annual or special meeting of such stockholders and may not be effected by
written consent of the stockholders.
Transfer Agent
The transfer agent for our securities is Continental
Stock Transfer & Trust Company. The transfer agent’s address is One State Street Plaza, 30th Floor New York, New York 10004.
Listing of Securities
Our common stock and Public Warrants are currently
traded on NYSE under the symbols “HLGN” and “HLGN.W”, respectively.
DESCRIPTION OF
DEBT SECURITIES
We may issue debt securities from time to time,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any
debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under
a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture,
we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the indenture
that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939,
as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement of which this
prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered
will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports
that we file with the SEC.
The following summary of material provisions of
the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing
prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the
terms of the debt securities.
General
The indenture does not limit the amount of debt
securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be
in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially
all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to
give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These
debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,”
or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material
U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable
prospectus supplement.
We will describe in the applicable prospectus
supplement the terms of the series of debt securities being offered, including:
| ● | the title of the series of debt securities; |
| ● | any limit upon the aggregate principal amount that may be issued; |
| ● | the maturity date or dates; |
| ● | the form of the debt securities of the series; |
| ● | the applicability of any guarantees; |
| ● | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms
of any subordination; |
| ● | if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is
a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another
security or the method by which any such portion shall be determined; |
| ● | the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such
dates; |
| ● | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at
our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions; |
| ● | the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or
analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the
currency or currency unit in which the debt securities are payable; |
| ● | the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; |
| ● | any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for
our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt
securities of that series; |
| ● | whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; |
| ● | the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual
securities; and the depositary for such global security or securities; |
| ● | if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions
upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or
how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange
features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
| ● | if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof; |
| ● | additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation,
merger or sale covenant; |
| ● | additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the
holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
| ● | additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
| ● | additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| ● | additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders
of debt securities issued under the indenture; |
| ● | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars; |
| ● | whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions
upon which the election may be made; |
| ● | the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal
amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes; |
| ● | any restrictions on transfer, sale or assignment of the debt securities of the series; and |
| ● | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes
in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities.
We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option
of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability
to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety.
However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture
or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect
to any series of debt securities that we may issue:
| ● | if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable,
and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose; |
| ● | if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
| ● | if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such
failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at
least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
| ● | if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt securities
of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and
payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action
on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured
the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event
of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such
holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
| ● | the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
| ● | subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series
will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only
if:
| ● | the holder has given written notice to the trustee of a continuing event of default with respect to that series; |
| ● | the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request; |
| ● | such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by
the trustee in compliance with the request; and |
| ● | the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of
the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the
trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without
the consent of any holders with respect to specific matters:
| ● | to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
| ● | to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale”; |
| ● | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| ● | to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the
benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred
upon us in the indenture; |
| ● | to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
| ● | to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
| ● | to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above
under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt
securities; |
| ● | to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
| ● | to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In addition, under the indenture, the rights of
holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority
in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
| ● | extending the fixed maturity of any debt securities of any series; |
| ● | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable
upon the redemption of any series of any debt securities; or |
| ● | reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver. |
Discharge
Each indenture provides that we can elect to be
discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations
to:
| ● | register the transfer or exchange of debt securities of the series; |
| ● | replace stolen, lost or mutilated debt securities of the series; |
| ● | pay principal of and premium and interest on any debt securities of the series; |
| ● | maintain paying agencies; |
| ● | hold monies for payment in trust; |
| ● | recover excess money held by the trustee; |
| ● | compensate and indemnify the trustee; and |
| ● | appoint any successor trustee. |
In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest
on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another
depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities
of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth
in the applicable prospectus supplement.
At the option of the holder, subject to the terms
of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the
limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present
the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed
if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated
by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose
no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement
the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If we elect to redeem the debt securities of any
series, we will not be required to:
| ● | issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or |
| ● | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any
of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for
the interest.
We will pay principal of and any premium and interest
on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to
certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of
the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus
supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying
agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee
for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after
such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be
governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture
Act is applicable.
DESCRIPTION OF
WARRANTS
The following description, together with the additional
information we may include in any applicable prospectus supplement and free writing prospectus, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt
securities and may be issued in one or more series. Warrants may be offered independently or in combination with common stock, preferred
stock or debt securities offered by any prospectus supplement. While the terms we have summarized below will apply generally to any warrants
that we may offer under this prospectus, we will describe the particular terms of any series of warrants in more detail in the applicable
prospectus supplement. The following description of warrants will apply to the warrants offered by this prospectus unless we provide otherwise
in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of warrants may specify different
or additional terms.
We will file as exhibits to the registration statement
of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or
the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering,
and any supplemental agreements, before the issuance of such warrants. The following summaries of material terms and provisions of the
warrants are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate,
as applicable, and any supplemental agreements applicable to a particular series of warrants that we may offer under this prospectus.
We urge you to read the applicable prospectus supplement related to the particular series of warrants that we may offer under this prospectus,
as well as any related free writing prospectus, and the complete warrant agreement and warrant certificate, as applicable, and any supplemental
agreements, that contain the terms of the warrants.
General
We will describe in the applicable prospectus
supplement the terms of the series of warrants being offered, including:
| ● | the offering price and aggregate number of warrants offered; |
| ● | the currency for which the warrants may be purchased; |
| ● | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
| ● | in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
| ● | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
| ● | the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
| ● | the terms of any rights to redeem or call the warrants; |
| ● | the terms of any rights to force exercise of the warrants; |
| ● | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
| ● | the dates on which the right to exercise the warrants will commence and expire; |
| ● | the manner in which the warrant agreements and warrants may be modified; |
| ● | a discussion of any material or special U.S. federal income tax considerations of holding or exercising the warrants; |
| ● | the terms of the securities issuable upon exercise of the warrants; and |
| ● | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
| ● | Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon
such exercise, including: |
| ● | in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
| ● | in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our
liquidation, dissolution or winding up or to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase
the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus
supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Unless we otherwise
specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of business on the expiration date
set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration date, unexercised
warrants will become void.
Upon receipt of payment and the warrant or warrant
certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other
office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable
upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant
or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we otherwise specify in the applicable
prospectus supplement, the warrants and any warrant agreements will be governed by and construed in accordance with the laws of the State
of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as
our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder
of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the
related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
DESCRIPTION OF
RIGHTS
The following description, together with the
additional information we include in any applicable prospectus supplement, summarizes the general features of the rights that we may offer
under this prospectus. We may issue rights to our stockholders to purchase shares of our common stock, preferred stock and/or any of the
other securities offered hereby. Each series of rights will be issued under a separate rights agreement to be entered into between us
and a bank or trust company, as rights agent. When we issue rights, we will provide the specific terms of the rights and the applicable
rights agreement in a prospectus supplement. Because the terms of any rights 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 rights agreement that describes the terms of the series of rights we are offering before the issuance of the related series of
rights. As of the date of this prospectus, we had no rights outstanding.
We may issue any series of rights, certain
terms of that series of rights will be described in the applicable prospectus supplement, including, without limitation, the following:
| ● | the date of determining the stockholders entitled to the rights distribution; |
| ● | the securities purchasable upon exercise of the rights; |
| ● | the aggregate number of rights issued; |
| ● | the date, if any, on and after which the rights will be separately transferable; |
| ● | the date on which the right to exercise the rights will commence, and the date on which the right will expire; |
| ● | a discussion of certain United States federal income tax considerations applicable to the rights; and |
| ● | any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of
the rights. |
Each right will entitle the holder of rights
to purchase for cash the securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at
any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement. After the
close of business on the expiration date, all unexercised rights will be void.
Holders may exercise rights as described in
the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward
the securities purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we
may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through
a combination of such methods, including pursuant to standby underwriting arrangements, as described in the applicable prospectus supplement.
Governing Law
Unless we otherwise specify in the applicable
prospectus supplement, the rights and any rights agreements will be governed by and construed in accordance with the laws of the State
of New York.
DESCRIPTION OF
UNITS
The following description, together with the
additional information we include in any applicable prospectus supplement, summarizes the general features of the units that we may offer
under this prospectus. We may issue units consisting of two or more other constituent securities offered hereby. These units may be issuable
as, and for a specified period of time may be transferable only as a single security, rather than as the separate constituent securities
comprising such units. Units will be issued pursuant to one or more unit agreements to be entered into between us and a bank or trust
company, as unit agent. While the features we have summarized below will generally apply to any units we may offer under this prospectus,
we will describe the particular terms of any units that we may offer in more detail in the applicable prospectus supplement. The specific
terms of any units may differ from the description provided below as a result of negotiations with third parties in connection with the
issuance of those units, as well as for other reasons. Because the terms of any units 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 urge you to read the applicable prospectus
supplement related to the specific units being offered, as well as the complete instruments that contain the terms of the securities that
comprise those units. Certain of those instruments, or forms of those instruments, have been, or will be, filed as exhibits to the registration
statement of which this prospectus is a part, and supplements to those instruments or forms may be incorporated by reference into the
registration statement of which this prospectus is a part from reports we file with the SEC.
If we offer any units, certain terms of that
series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
| ● | the title of the series of units; |
| ● | identification and description of the separate constituent securities comprising the units; |
| ● | the price or prices at which the units will be issued; |
| ● | the date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
| ● | a discussion of certain United States federal income tax considerations applicable to the units; and |
| ● | any other terms of the units and their constituent securities. |
Governing
Law
Unless we otherwise specify
in the applicable prospectus supplement, the units and any unit agreements will be governed by and construed in accordance with the laws
of the State of New York.
LEGAL OWNERSHIP
OF SECURITIES
We may issue securities in registered form or
in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have
securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this
purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons
who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect
holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in
book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only,
as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities
registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate
in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered
is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its
participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities,
and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants,
which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security
will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities
are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities
in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.”
Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the
investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at
that institution.
For securities held in street name, we or any
applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the
securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those
securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only
because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities
in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of
any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not
have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This
will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities
only in global form.
For example, once we make a payment or give a
notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to
obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply
with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the holders, and
not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker
or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:
| ● | the performance of third-party service providers; |
| ● | how it handles securities payments and notices; |
| ● | whether it imposes fees or charges; |
| ● | how it would handle a request for the holders’ consent, if ever required; |
| ● | whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted
in the future; |
| ● | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to
protect their interests; and |
| ● | if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
A global security is a security that represents
one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities
will have the same terms.
Each security issued in book-entry form will be
represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select.
The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus
supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or
registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations
arise. We describe those situations below under the section titled “Special Situations When a Global Security Will Be Terminated”
in this prospectus. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of
all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account
with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not
be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular
security indicates that the security will be issued in global form only, then the security will be represented by a global security at
all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
The rights of an indirect holder relating to a
global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as
general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only
with the depositary that holds the global security.
If securities are issued only in the form of a
global security, an investor should be aware of the following:
| ● | an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or
her interest in the securities, except in the special situations we describe below; |
| ● | an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above; |
| ● | an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required
by law to own their securities in non-book-entry form; |
| ● | an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
| ● | the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global security; |
| ● | we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership
interests in a global security, nor do we or any applicable trustee supervise the depositary in any way; |
| ● | the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within
its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and |
| ● | financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest
in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities. |
There may be more than one financial intermediary
in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the
global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their
own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct
holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable
prospectus supplement, the global security will terminate when the following special situations occur:
| ● | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days; |
| ● | if we notify any applicable trustee that we wish to terminate that global security; or |
| ● | if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The applicable prospectus supplement may also
list additional situations for terminating a global security that would apply only to the particular series of securities covered by the
applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct holders.
SELLING SECURITYHOLDERS
The Selling Securityholders acquired the Private
Warrants and shares of our common stock from us in private offerings pursuant to exemptions from registration under Section 4(a)(2) of
the Securities Act in connection with a private placement concurrent with the initial public offering of Athena and in connection with
the Business Combination. Pursuant to certain contractual arrangements, we agreed to file a registration statement with the SEC for the
purposes of registering for resale (i) the Private Warrants (and the shares of common stock issuable upon the exercise of the Private
Warrants) and (ii) the shares of our common stock issued to the Selling Securityholders. Our registration of the securities covered
by this prospectus does not mean that the Selling Securityholders will in fact offer or sell any or all of the shares of common stock
or Warrants. In addition, the Selling Securityholders may sell, transfer or otherwise dispose of, at any time and from time to time, the
common stock or Warrants covered by this prospectus in transactions exemption from the requirements of the Securities Act after the date
of this prospectus. The Selling Securityholders may offer, sell or distribute all or a portion of their shares of common stock or Warrants
publicly or through private transactions at prevailing market prices or at negotiated prices.
Except as set forth in the footnotes below,
the following table sets forth, based on written representations from the Selling Securityholders, certain information as of May 8,
2023 regarding the beneficial ownership of our common stock and Warrants by the Selling Securityholders and the shares of common stock
and Warrants being offered by the Selling Securityholders. The applicable percentage ownership of common stock is based on the sum of
196,895,138 shares of common stock issued and outstanding as of May 8, 2023. Unless otherwise noted in the footnotes to the
following table, and subject to applicable community property laws, the persons and entities named in the table have sole voting and
investment power with respect to their beneficially owned common stock.
Information with respect
to shares of our common stock and the Private Warrants owned beneficially after the offering assumes the sale of all of the shares of
our common stock and the Private Warrants offered and no other purchases or sales of shares of our common stock or Private Warrants. The
Selling Securityholders may offer and sell some, all or none of their shares of our common stock or Private Warrants, as applicable.
We have determined beneficial
ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, we believe, based on the information
furnished to us, that the Selling Securityholders have sole voting and investment power with respect to all shares of common stock and
Warrants that they beneficially own, subject to applicable community property laws. Except as otherwise described below, based on the
information provided to us by the Selling Securityholders, no Selling Securityholder is a broker-dealer or an affiliate of a broker-dealer.
Except as set forth in the
footnotes below, (i) the following table does not include up to 8,333,333 shares of common stock issuable upon the exercise of the
Public Warrants and (ii) the address of each selling securityholder is 130 West Union St., Pasadena, California 91103.
Please see the section titled
“Plan of Distribution” for further information regarding the stockholders’ method of distributing these shares.
| |
Number of Shares of Common
Stock Beneficially | | |
Warrants Beneficially Owned
Prior to | | |
Number of Shares of Common
Stock Being | | |
Number of Warrants Being | | |
Shares of Common Stock
Beneficially Owned After the Offered Shares of Common Stock are Sold | | |
Warrants Beneficially
Owned After the Offered Warrants are Sold | |
Name
of Selling Securityholder | |
Owned | | |
Offering | | |
Offered | | |
Offered | | |
Number | | |
Percent | | |
Number | | |
Percent | |
ArcelorMittal
XCarb S.à.r.l.(1) | |
| 3,406,516 | | |
| — | | |
| 1,000,000 | | |
| — | | |
| 2,406,516 | | |
| 1.2 | % | |
| — | | |
| — | |
Flying
Point LLC(2) | |
| 200,000 | | |
| — | | |
| 200,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Saba
Capital Master Fund, Ltd (3) | |
| 126,243 | | |
| — | | |
| 126,243 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
University of Wyoming
Foundation | |
| 100,000 | | |
| — | | |
| 100,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Virya,
LLC(4) | |
| 300,000 | | |
| — | | |
| 300,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Annette L. Nazareth | |
| 33,428 | | |
| — | | |
| 33,428 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Bill
Gross(5) | |
| 27,014,420 | | |
| — | | |
| 6,835,995 | | |
| — | | |
| 20,178,425 | | |
| 10.3 | % | |
| — | | |
| — | |
Blue Monarch Investments LLC(6) | |
| 15,000 | | |
| — | | |
| 15,000 | | |
| — | | |
| | | |
| | | |
| — | | |
| — | |
Brockington
Hall, LLC(7) | |
| 15,000 | | |
| — | | |
| 15,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Ciara Bunham | |
| 5,714 | | |
| — | | |
| 5,714 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Cynosure
Holdings LLC(8) | |
| 17,142 | | |
| — | | |
| 17,142 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Deborah Chen | |
| 196,687 | | |
| — | | |
| 126,559 | | |
| — | | |
| 70,128 | | |
| * | % | |
| — | | |
| — | |
Devon Pike | |
| 5,714 | | |
| — | | |
| 5,714 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Grace Vandecruze | |
| 75,000 | | |
| — | | |
| 75,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Idealab
Holdings, LLC(9) | |
| 15,341,231 | | |
| — | | |
| 15,341,231 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Idealab
Studio, LLC(10) | |
| 16,175 | | |
| — | | |
| 16,175 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Isabelle Freidheim | |
| 607,309 | (21) | |
| 50,556 | | |
| 607,309 | (21) | |
| 50,556 | | |
| — | | |
| — | | |
| — | | |
| — | |
Jade Kennedy | |
| 15,000 | | |
| — | | |
| 15,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Judith
Rodin 2010 Grantor Retained Annuity Trust (Aetna)(11) | |
| 52,855 | | |
| — | | |
| 52,855 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Julie Anne Cullivan | |
| 5,714 | | |
| — | | |
| 5,714 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Karen Brooks | |
| 30,000 | | |
| — | | |
| 30,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Kay Koplovitz | |
| 30,000 | | |
| — | | |
| 30,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Minneola Ingersoll | |
| 1,143 | | |
| — | | |
| 1,143 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Nant
Capital, LLC(12) | |
| 24,646,323 | | |
| — | | |
| 24,646,323 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
NeoTribe
Ventures I, L.P. for itself and as nominee for NeoTribe Associates I, L.P.(13) | |
| 3,278,214 | | |
| — | | |
| 3,278,214 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Phoenix
2021 Holdings, LLC(14) | |
| 60,000 | | |
| — | | |
| 60,000 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Phyllis Newhouse | |
| 4,178,234 | (22) | |
| 112,777 | | |
| 112,777 | (22) | |
| 112,777 | | |
| 4,065,457 | | |
| 2.1 | % | |
| — | | |
| — | |
EVN
2022 GRAT(15) | |
| 246,483 | | |
| — | | |
| 246,483 | | |
| — | | |
| — | | |
| | | |
| | | |
| | |
Prime
Movers Lab Fund I LP(16) | |
| 17,270,403 | | |
| — | | |
| 17,270,403 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Project
JB LLC(17) | |
| 30,714 | | |
| — | | |
| 30,714 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
SGLG
Living Trust dated 12/11/12(18) | |
| 11,428 | | |
| — | | |
| 11,428 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
STB
2017 Holdings LLC(19) | |
| 511 | | |
| — | | |
| 511 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
The
Kay Koplovitz 2018 Revocable Trust(20) | |
| 22,855 | | |
| — | | |
| 22,855 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Valerie Mosley | |
| 22,855 | | |
| — | | |
| 22,855 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
The Gross Goodstein Living
Trust, dated April 18, 2006 | |
| 414,363 | | |
| — | | |
| 414,363 | | |
| | | |
| | | |
| | | |
| | | |
| | |
Parksea Investments Limited | |
| 79,671 | | |
| — | | |
| 79,671 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Wes Ferrari | |
| 30,237 | | |
| — | | |
| 30,237 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Prime
Movers Lab Fund II LP(16) | |
| 6,917 | | |
| — | | |
| 6,917 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Heliogen PML SPV 1 LP(16) | |
| 6,668,457 | | |
| — | | |
| 6,668,457 | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
* | Represents less than 1%. |
(1) | Consists of (i) 2,406,516 shares of common stock and
(ii) 1,000,000 shares of common stock issued pursuant to that certain subscription agreement entered into on July 6, 2021 between
Heliogen and the named selling securityholder. |
(2) | John M. Bader has voting and/or investment control over
the securities held by Flying Port LLC and thus may be deemed to beneficially own the shares. |
(3) | Boaz Weinstein is the managing member of the general partner
of the Saba Capital Master Fund, Ltd. (“Saba Capital”), investment manager and accordingly may be deemed to have voting and
dispositive power with respect to shares held by Saba Capital. Mr. Boaz disclaims beneficial ownership of the securities reported
herein for purposes of Section 16 of the Securities and Exchange Act of 1934, as amended, except as to such extent
of such reporting person’s pecuniary interest in the securities. The business address of Saba Capital is c/o Saba Capital Management,
LP, 405 Lexington Avenue, 58th Floor, New York, New York 10174. |
(4) | Christopher John Anderson, as the managing member of Virya,
LLC, has voting and/or investment control over the securities held by Virya, LLC. |
(5) | Number of shares of common stock beneficially owned is based
on holdings reflected on a Schedule 13D/A filed with the SEC on March 28, 2023. The number of shares offered hereby consists of (i) 1,589,488
shares of common stock and (ii) 4,815,969 shares issuable for vested and exercisable options at the Closing Date. The number of
shares offered hereby also includes (i) 414,363 shares of common stock held by The Gross Goodstein Living Trust, dated April 18,
2006, of which Mr. Gross and his wife are co-trustees (“Gross Trust”) and (ii) 16,175 shares of common stock held
by Idealab Studio. The Gross Trust owns a majority of the class of securities entitled to elect two directors to Idealab Studio’s
board of managers. In addition, Mr. Gross is the chairman and chief executive officer of Idealab Studio. As a result of the foregoing,
Mr. Gross may be deemed to beneficially own the securities held by Idealab Studio. |
(6) | Cherita A. Amorae and Robert D. Winchester have
voting and/or investment control over the securities held by Blue Monarch Investments LLC (“Blue Monarch”) and may be deemed
to beneficially own the securities owned by Blue Monarch. The business address of Blue Monarch is c/o 755 E. Red House Branch Rd.,
St. Augustine, FL 32084. |
(7) | Stacey Yvonne Abrams has sole voting and investment control
over the securities held by Brockington and may be deemed to beneficially own the securities owned by Brockington. Ms. Abrams serves
as a member of the Board of Directors of the Company. |
(8) | Sandra Campos is the manager of Cynosure Holdings LLC (“Cynosure”)
and has voting and/or investment control over the securities held by Cynosure. |
(9) | Based on holdings reflected on a Schedule 13D/A filed with
the SEC on March 28, 2023. The shares are held by Idealab Holdings, LLC (“Idealab Holdings”), a wholly-owned subsidiary of
Idealab, a California corporation. Idealab is managed by a board of directors consisting of Bill Gross, Marcia Goodstein and Renee LaBran,
and no single person has voting or dispositive authority over the securities reported herein. As such, Mr. Gross may be deemed to share
beneficial ownership of the securities reported herein. Each of the foregoing persons disclaims any such beneficial ownership. The address
for each of the entities and individuals listed in this footnote is 130 West Union Street, Pasadena, CA 91103. |
(10) | Idealab Studio, LLC is managed by a board of directors consisting
of Bill Gross, Allen Morgan and Howard Morgan. The Gross Trust, of which Mr. Gross and his wife are co-trustees, owns a majority
of the class of securities entitled to elect two directors to Idealab Studio’s board of managers. In addition, Mr. Gross is
the chairman and chief executive officer of Idealab Studio. As a result of the foregoing, Mr. Gross may be deemed to share voting
and dispositive power and beneficially own the securities held by Idealab Studio. The address for each of the entities and individuals
listed in this footnote is 130 West Union Street, Pasadena, CA 91103. |
(11) | Alexander Niejelow is the trustee of the Judith Rodin 2010
Grantor Retained Annuity Trust (Aetna) (the “Rodin Trust”) and may be deemed to have the power to vote or dispose of the
securities held by the Rodin Trust. |
(12) | The shares are held by Nant Capital LLC (“Nant Capital”).
California Capital Equity, LLC (“CalCap”) directly owns all of the equity interests of Nant Capital, LLC and CalCap may be
deemed to have beneficial ownership of the shares held by Nant Capital. Dr. Patrick Soon-Shiong directly owns all of the equity
interests of CalCap and has sole voting and dispositive power over the shares held by CalCap. The address of the principal business office
of Nant Capital, LLC is 9922 Jefferson Blvd, Culver City, CA, 90232. |
(13) | Represents holdings as of March 24, 2023, based on information
provided by the selling securityholder. Krishna Swaroop Kolluri is the general partner NeoTribe Ventures I, L.P. for itself and as nominee
for NeoTribe Associates I, L.P. and may be deemed to have beneficial ownership of the shares held by each of them. The address for each
of the entities and individuals listed in this footnote is 2744 Sand Hill Road, Suite 150, Menlo Park CA 94025. |
(14) | Grace Vandecruze has voting and/or investment control over
the securities held by Phoenix 2021 Holdings, LLC (“Phoenix 2021”) and may be deemed to beneficially own the securities owned
by Phoenix 2021. |
(15) | The shares are held by a grantor retained annuity trust,
the EVN 2022 GRAT fbo Ezekiel Newhouse, over which Phyllis Newhouse has sole voting and dispositive power. |
(16) |
Number of shares of common stock beneficially owned is based on holdings reflected on a Schedule 13D filed with the SEC on February 13, 2023. Dakin Sloss is the managing member of each of Prime Movers Lab GP I LLC (“GP I”) and Prime Movers Lab GP II LLC (“GP II”). PML GP I is the general partner of Prime Movers Lab Fund I LP (“PMLF I”). PML GP II is the general partner of each of Prime Movers Lab Fund II LP (“PMLF II”) and Heliogen PML SPV 1 LP (“PML SPV”). As manager of each of GPI and GP II, Mr. Sloss may be deemed to have shared voting and dispositive power over and may be deemed to have beneficial ownership of the shares held by each of PMLF I, PMLF II and PML SPV.. The address for each of the entities and individuals listed in this footnote is PO Box 12829, Jackson, WY 83002. |
(17) | Chenxi Wang has voting and/or investment control over the
securities held by Project JB LLC (“Project JB”) and may be deemed to beneficially own the securities owned by Project JB. |
(18) | Theresia Gouw is the trustee of SGLG 2012 Living Trust dated
December 11, 2012 (the “SGLG Trust”) and may be deemed to have the power to vote or dispose of the securities held by
the SGLG Trust. |
(19) | Brent Brown is the operating manager of STB 2017 Holdings
LLC (“STB Holdings”) and may be deemed to have the power to vote or dispose of the securities held by STB Holdings. |
(20) | Kay Koplovitz is the trustee of The Kay Koplovitz 2018 Revocable
Trust (the “Koplovitz Trust”) and may be deemed to have the power to vote or dispose of the securities held by the Koplovitz
Trust. |
(21) |
Includes 50,556 shares of
common stock issuable upon exercise of the Private Warrants, which may be exercised at any time prior to their expiration on December
30, 2026, or earlier upon redemption or liquidation. |
(22) |
Includes 112,777 shares
of common stock issuable upon exercise of the Private Warrants, which may be exercised at any time prior to their expiration on December
30, 2026, or earlier upon redemption or liquidation. |
PLAN OF DISTRIBUTION
We may sell the securities described herein,
and the Selling Securityholders may sell some or all of the shares of common stock or Private Warrants that they hold, from time to time
in one or more offerings, by a variety of methods, including the following:
| ● | on any national securities exchange or quotation service on which our securities may be listed at the time of sale, including the
NYSE; |
| ● | in the over-the-counter market; |
| ● | in transactions otherwise than on such exchange or in the over-the-counter market, which may include privately negotiated
transactions and sales directly to one or more purchasers; |
| ● | through ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● | through purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | through underwriters, broker-dealers, agents, in privately negotiated transactions, or any combination of these methods; |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| ● | by pledge to secure debts or other obligations; |
| ● | a combination of any of these methods; or |
| ● | by any other method permitted pursuant to applicable law. |
As used in this prospectus,
“Selling Securityholders” includes transferees, pledgees, donees, assignees or successors selling shares received after the
date of this prospectus from a Selling Securityholder as a gift, pledge, partnership distribution or other non-sale related transfer.
We will not receive any proceeds from the sale
of securities that may be sold from time to time pursuant to this prospectus by the Selling Securityholders. We will bear the costs associated
with this registration in accordance with the agreements granting registration rights to the Selling Securityholders. However, the Selling
Securityholders will bear any brokerage commissions, transfer taxes, or underwriting commissions and discounts attributable to their sale
of securities pursuant to this prospectus. To our knowledge, there are currently no plans, arrangements or understandings between any
Selling Securityholders and any underwriter, broker-dealer or agent regarding the sale of securities pursuant to this prospectus by the
Selling Securityholders.
We or the Selling Securityholders
may sell the securities to or through one or more underwriters or dealers (acting as principal or agent), through agents, or directly
to one or more purchasers. We or the Selling Securityholders may distribute the securities from time to time in one or more transactions:
| ● | at a fixed price or prices, which may be changed; |
| ● | at market prices prevailing at the time of sale; |
| ● | at prices related to such prevailing market prices; |
| ● | at varying prices determined at the time of sale; or |
We will describe the terms of the offering of
the securities and the specific plan of distribution in a prospectus supplement or supplements to this prospectus, any related free writing
prospectus that we may authorize to be provided to you, an amendment to the registration statement of which this prospectus is a part
or other filings we make with the SEC under the Exchange Act that are incorporated by reference. Such description may include, to the
extent applicable:
| ● | the name or names of any underwriters, dealers, agents or other purchasers; |
| ● | the purchase price of the securities or other consideration therefor, and the proceeds, if any, we or the Selling Securityholders
will receive from the sale; |
| ● | any options to purchase additional shares or other options under which underwriters, dealers, agents or other purchasers may purchase
additional securities from us or the Selling Securityholders; |
| ● | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
| ● | any public offering price; |
| ● | any discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any securities exchange or market on which the securities may be listed. |
Only underwriters named in the prospectus supplement
will be underwriters of the securities offered by the prospectus supplement. The Selling Securityholders who participate in the sale or
distribution of the securities offered by the Selling Securityholders and any dealers and agents participating in the distribution of
the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting
discounts. Any Selling Securityholders identified as registered broker-dealers in the Selling Securityholders table in the section titled
“Selling Securityholders” are deemed to be underwriters. If such dealers or agents were deemed to be underwriters,
they may be subject to statutory liabilities under the Securities Act.
If underwriters are used in the sale, they will
acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will
be subject to the conditions set forth in the applicable underwriting agreement. We or the Selling Securityholders may offer the securities
to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to
certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than
securities covered by any option to purchase additional shares or other option. If a dealer is used in the sale of securities, we or the
Selling Securityholders, or an underwriter, will sell the securities to the dealer, as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the
prospectus supplement the name of the dealer and the terms of the transaction. Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may change from time to time. We or the Selling Securityholders may use underwriters, dealers
or agents with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, dealer or
agent, the nature of any such relationship.
We or the Selling Securityholders may sell securities
directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and
we will describe any commissions payable to the agent in the prospectus supplement. Unless the prospectus supplement states otherwise,
the agent will act on a best-efforts basis for the period of its appointment.
We may provide agents, dealers and underwriters
with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments
that the agents or dealers or underwriters may make with respect to these liabilities. Agents, dealers and underwriters or their affiliates
may engage in transactions with, or perform services for us in the ordinary course of business.
With respect to the offering and sale of securities
under this prospectus by the Selling Securityholders, we have agreed to indemnify each Selling Securityholder and any underwriter for
such Selling Securityholder (as determined in the Securities Act) against specified liabilities, including liabilities under the Securities
Act. The Selling Securityholders have agreed to indemnify us against specified liabilities, including liabilities under the Securities
Act. In addition, we have agreed to pay substantially all of the expenses incidental to the registration, offering and sale of securities
pursuant to this prospectus by the Selling Securityholders to the public, including the payment of federal securities law and state blue
sky registration fees and the reasonable fees and disbursements of one counsel for the Selling Securityholders, except that we will not
bear any brokers’ or underwriters’ discounts and commissions, fees and expenses of counsel to underwriters or brokers, transfer
taxes or transfer fees relating to the sale of securities by the Selling Securityholders.
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 or the Selling Securityholders 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 the Selling Securityholders or borrowed from us, the Selling
Securityholders or others to settle those sales or to close out any related open borrowings of common stock, and may use securities received
from us or the Selling Securityholders in settlement of those derivatives to close out any related open borrowings of our common stock.
In addition, we or the Selling Securityholders may loan or pledge securities to a financial institution or other third party that in turn
may sell the securities 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.
All securities we may offer, other than common
stock and the Warrants, will be new issues of securities with no established trading market. Any underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the
liquidity of the trading markets for any securities.
Any underwriter may be granted an option to purchase
additional shares, and engage in stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation
M under the Exchange Act. An underwriter’s option to purchase additional shares involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either
through exercise of the option to purchase additional shares or in the open market after the distribution is completed, to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the
dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters, dealers or agents that are qualified
market makers on the New York Stock Exchange may engage in passive market making transactions in our common stock on the New York Stock
Exchange in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before
the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the
market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued
at any time.
LEGAL MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, Cooley LLP, Los Angeles, California, will pass upon the validity of the
securities offered by this prospectus and any supplement thereto. Additional legal matters may be passed upon for us or any underwriters,
dealers or agents, by counsel that we name in the applicable prospectus supplement.
EXPERTS
The consolidated financial
statements as of and for the year ended December 31, 2021 incorporated by reference in this Prospectus and in the Registration Statement
have been so incorporated in reliance on the report of BDO USA, LLP, an independent registered public accounting firm, incorporated herein
by reference, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements as
of December 31, 2022 and for the year ended December 31, 2022 incorporated in this Prospectus by reference to the Annual Report on
Form 10-K for the year ended December 31, 2022 have been so incorporated in reliance on the report (which contains an explanatory paragraph
relating to the Company’s net losses as described in Note 1 to the consolidated financial statements) of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND
ADDITIONAL INFORMATION
This
prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the
information set forth or incorporated by reference in the registration statement. Whenever a reference is made in this prospectus to any
of our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part
of the registration statement or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy
of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act,
we are required to file annual, quarterly and current reports, proxy statements and other information with the SEC as required by the
Exchange Act. You can read our SEC filings, including this prospectus, over the Internet at the SEC’s website at http://www.sec.gov.
Our
website address is www.Heliogen.com. Through our website, we make available, free of charge, the documents that are electronically
filed with, or furnished to, the SEC as soon as reasonably practicable after they are filed with, or furnished to, the SEC, including
our Annual Reports on Form 10-K; our proxy statements for our annual and special stockholder meetings; our Quarterly Reports on Form 10-Q;
our Current Reports on Form 8-K; Forms 3, 4, and 5 and Schedules 13D with respect to our securities filed on behalf of
our directors and our executive officers; and amendments to those documents. The information contained on, or that may be accessed through,
our website is not a part of, and is not incorporated into, this prospectus.
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
information from other documents that we file with it, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that
we file later with the SEC will automatically update and supersede the information in this prospectus. We incorporate by reference into
this prospectus and the registration statement of which this prospectus is a part the information or documents listed below that we have
filed with the SEC:
| ● | our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on
March 29, 2023; |
|
● |
our Quarterly Report on Form 10-Q for the quarter
ended March 31, 2023, filed with the SEC on May 10, 2023; |
| ● | the description of our common stock and Warrants contained in our Registration Statement on Form
8-A, filed with the SEC on March 12, 2021, as updated by Exhibit 4.4 to our Annual Report on Form 10-K for the year ended
December 31, 2021 filed with the SEC on March 31, 2022, together with any amendment or report filed with the SEC for the
purpose of updating such description. |
All filings filed by us pursuant to the Exchange
Act after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of
the registration statement shall be deemed to be incorporated by reference into this prospectus.
We also incorporate by reference any future filings
(other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such
items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, including those made after the date of the initial filing of the registration statement of which this prospectus is a part
and prior to effectiveness of such registration statement, until we file a post-effective amendment that indicates the termination of
the offering of the securities made by this prospectus and will become a part of this prospectus from the date that such documents are
filed with the SEC. Information in such future filings updates and supplements the information provided in this prospectus. Any statements
in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with
the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document
modify or replace such earlier statements.
You can request a copy of these filings, at no
cost, by writing or telephoning us at the following address or telephone number:
Heliogen, Inc.
130 West Union Street
Pasadena, California 91103
(626) 720-4530
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an estimate of
the fees and expenses, other than the underwriting discounts and commissions, payable by us in connection with the issuance and distribution
of the securities being registered. The Selling Securityholders will not bear any portion of such costs and expenses.
SEC registration fee | |
$ |
16,718.76 | (1) |
The New York Stock Exchange fee | |
$ | | (2) |
FINRA filing fee | |
$ | | (2) |
Accounting fees and expenses | |
$ | | (2) |
Legal fees and expenses | |
$ | | (2) |
Transfer agent and registrar, trustee and depositary fees | |
$ | | (2) |
Printing and miscellaneous fees and expenses | |
$ | | (2) |
Total | |
$ | | (2) |
(1) |
These fees comprise the registration fee for the registration of an
aggregate amount of $150,000,000 of any combination of the securities described in this prospectus to be offered by the Registrant and
the registration of the resale by selling stockholders named herein of an additional 6,831,790 shares of common stock (including 163,333
shares of common stock issuable upon the exercise of the Private Warrants) not previously registered under the Initial Registration Statement
(as defined below). This Registration Statement also registers 71,025,640 shares of common stock and 163,333 whole Private Warrants to
be offered by the selling securityholders and the issuance by the Registrant of 8,333,333 shares of common stock upon the exercise of
the Public Warrants, which registration fees with respect to these securities were previously paid on the Registrant’s registration
statement on Form S-1 (No. 333-262319), initially filed on January 24, 2022, and declared effective on February 3, 2022, as most recently
amended by Post-Effective Amendment No. 3 to Form S-1 on Form S-3, filed on March 30, 2023 and declared effective on April 5, 2023 (the
“Initial Registration Statement”). Pursuant to Rule 429 under the Securities Act, the prospectus included in this registration
statement is a combined prospectus relating to this registration statement and the Initial Registration Statement. |
| (2) | The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated
at this time. An estimate of the aggregate expenses in connection with the sale and distribution of securities being offered will be included
in the applicable prospectus supplement. |
Item 15. Indemnification of Directors and Officers
Section 145(a) of
the DGCL provides, in general, that a corporation may indemnify any person who was or is a party to or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation), because he or she is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of
the DGCL provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the
person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall
have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably
entitled to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
Section 145(g) of
the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have
the power to indemnify the person against such liability under Section 145 of the DGCL.
Additionally, our Certificate
of Incorporation eliminates our directors’ liability to the fullest extent permitted under the DGCL. The DGCL provides that
directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except
for liability:
| ● | for
any transaction from which the director derives an improper personal benefit; |
| ● | for
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
| ● | for
any unlawful payment of dividends or redemption of shares; or |
| ● | for
any breach of a director’s duty of loyalty to the corporation or its stockholders. |
If the DGCL is amended
to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of our directors
will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
In addition, we have entered
into separate indemnification agreements with our directors and officers. These agreements, among other things, require us to indemnify
our directors and officers for certain expenses, including attorneys’ fees, judgments, fines, and settlement amounts incurred by
a director or officer in any action or proceeding arising out of their services as one of our directors or officers or any other company
or enterprise to which the person provides services at our request.
We maintain a directors’
and officers’ insurance policy pursuant to which our directors and officers are insured against liability for actions taken in their
capacities as directors and officers.
Any underwriting agreement that we may enter into
will provide for indemnification by any underwriters of the company, our directors, our officers who sign the registration statement and
our controlling persons, if any, for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits
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INCORPORATED BY REFERENCE |
EXHIBIT NUMBER |
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DESCRIPTION OF EXHIBIT |
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SCHEDULE/
FORM |
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FILE NUMBER |
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EXHIBIT |
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FILE
DATE |
1.1* |
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Form of Underwriting Agreement. |
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2.1† |
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Business Combination Agreement, dated as of July 6, 2021, by and among Athena Technology Acquisition Corp., HelioMax Merger Sub, Inc. and Heliogen, Inc. |
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Form 8-K |
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001-40209 |
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2.1 |
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July 7, 2021 |
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3.1 |
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Second Amended and Restated Certificate of Incorporation of Heliogen, Inc. |
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Form 8-K |
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001-40209 |
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3.1 |
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January 6, 2022 |
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3.2 |
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Second Amended and Restated Bylaws of Heliogen, Inc. |
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Form 10-Q |
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001-40209 |
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3.2 |
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November 8, 2022 |
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4.1 |
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Specimen Common Stock Certificate. |
|
Form 8-K |
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001-40209 |
|
4.1 |
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January 6, 2022 |
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4.2* |
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Form of Certificate of Designation of Preferred Stock. |
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4.3* |
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Specimen Preferred Stock Certificate |
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4.4*** |
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Form of Indenture. |
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4.5* |
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Form of Debt Securities. |
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4.6* |
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Form of Common Stock Warrant Agreement and Warrant Certificate |
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4.7* |
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Form of Preferred Stock Warrant Agreement and Warrant Certificate |
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4.8* |
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Form of Debt Securities Warrant Agreement and Warrant Certificate |
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4.9* |
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Form of Rights Agreement |
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4.10* |
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Form of Unit Agreement and Unit Certificate |
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5.1 |
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Opinion of Cooley LLP. |
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23.1 |
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Consent of BDO USA, LLP, independent registered public accounting firm. |
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23.2 |
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
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23.3 |
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Consent of Cooley LLP (included in Exhibit 5.1). |
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24.1*** |
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Power of Attorney. Reference is made to the signature pages of this Form S-3. |
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25.1** |
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Statement of Eligibility of Trustee Under the Indenture. |
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107 |
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Filing Fee Table. |
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* | To be filed by amendment or as an exhibit to a Current Report
on Form 8-K and incorporated herein by reference, if applicable. |
** | To be filed in accordance with the requirements of Section
305(b)(2) of the Trust Indenture Act of 1939, as amended, and the applicable rules thereunder. |
† | Certain of the exhibits
and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601. The Company agrees to furnish a copy of all
omitted exhibits and schedules to the SEC upon its request. |
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; 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 (1)(i),
(1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 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 that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That,
for the purpose of determining liability of the registrant under the Securities Act, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(7) That,
for purposes of determining any liability under the Securities Act:
(i) the
information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed
to be a part of the registration statement as of the time it was declared effective; and
(ii) each
post-effective amendment that contains a form of prospectus 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.
(8) To file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Pasadena, State of California, on this 10th day of May, 2023.
|
HELIOGEN, INC. |
|
|
|
By: |
/s/ Christiana Obiaya |
|
|
Christiana Obiaya |
|
|
Chief Executive Officer |
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates
indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Christiana Obiaya |
|
Chief Executive Officer |
|
May 10, 2023 |
Christiana Obiaya |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Kelly Rosser |
|
Interim Chief Financial Officer |
|
May 10, 2023 |
Kelly Rosser |
|
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
* |
|
Director |
|
May 10, 2023 |
Phyllis W. Newhouse |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May 10, 2023 |
Robert Kavner |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May 10, 2023 |
Julie M. Kane |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May 10, 2023 |
Barbara Burger |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May 10, 2023 |
Stacey Abrams |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May 10, 2023 |
Roger Lazarus |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May 10, 2023 |
Suntharesan Padmanathan |
|
|
|
|
*By: |
/s/ Kelly Rosser |
|
|
Kelly Rosser |
|
|
Attorney-in-fact |
|
II-6
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