As
filed with the Securities and Exchange Commission on June 30, 2022
SEC
File No. 333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Willamette
Valley Vineyards, Inc.
(Exact
name of registrant as specified in its charter)
Oregon
(State
or other jurisdiction of incorporation or organization) |
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93-0981021
(I.R.S.
EmployerIdentification No.) |
8800
Enchanted Way SE
Turner,
Oregon 97392
(503)
588-9463
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
James
W. Bernau
President
and Chief Executive Officer
8800
Enchanted Way SE
Turner,
Oregon 97392
(503)
588-9463
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
| |
Andrew
J. Bond
Sheppard
Mullin Richter & Hampton LLP
1901
Avenue of the Stars, Suite 1600
Los
Angeles, California 960067-6017
Tel.
(310) 228-3700 |
|
Approximate
date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. o
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 (the “Securities Act”), other than securities offered only in connection with dividend
or interest reinvestment plans, please 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. o
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. o
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 Securities and Exchange Commission pursuant to Rule 462(e) under the Securities Act, please check the following
box. o
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. o
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12-b2 of the Exchange Act. (Check one):
| Large
accelerated filer o |
Accelerated
filer o |
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|
| Non-accelerated
filer x |
Smaller
reporting company x |
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|
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Emerging
growth company o |
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 13(a) of the Exchange Act. o
The
Registrant hereby amends the Registration Statement on such date or dates as may be necessary to delay its effective date until the Registration
Statement shall thereafter become effective in accordance with Section 8(a) of the Act or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities pursuant to this prospectus until
the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these
securities and we are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED JUNE 30, 2022
PROSPECTUS
Willamette
Valley Vineyards, Inc.
$20,000,000
Common
Stock
Preferred
Stock
Senior
Debt Securities
Subordinated
Debt Securities
Warrants
Rights
Units
We
may offer and sell, from time to time, any combination of debt and equity securities that we describe in this prospectus having an aggregate
initial offering price not exceeding $20,000,000. We will provide the specific terms of these securities in one or more supplements to
this prospectus. You should read this prospectus and the applicable prospectus supplements carefully, including the information incorporated
by reference herein and therein, before you invest in the securities described in such prospectus supplement. This prospectus may not
be used to consummate sales of securities unless it is accompanied by a prospectus supplement.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “WVVI”. On June 29, 2022, the last reported sales price
of our common stock as reported on the Nasdaq Capital Market was $6.13 per share. Our Series A Redeemable Preferred Stock is listed on
the Nasdaq Capital Market under the symbol “WVVIP”. On June 29, 2022, the last reported sales price of our Series A Redeemable
Preferred Stock as reported on the Nasdaq Capital Market was $4.5499 per share. We are a smaller reporting company and as such are entitled
to certain reduced public company reporting requirements.
Investing
in our securities involves risks; for more information please see “Risk Factors” beginning on page 3 of this prospectus, and
the risk factors incorporated herein from time to time by reference from our most recent Annual Report on Form 10-K and our most recent
Quarterly Report on Form 10-Q.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is June 30, 2022.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission (“SEC”) using
a “shelf” registration process. Under this shelf registration statement, we may sell, either separately or together, common
stock, preferred stock, senior debt securities, subordinated debt securities, warrants, rights or units in one or more offerings. We
may use the shelf registration statement to sell, in one or more offerings, up to $20,000,000 of any securities registered, in any combination
in an offering amount. This prospectus only provides you with a general description of the securities we may offer. Each time we sell
securities, we will provide a supplement to this prospectus that contains specific information about the terms of the securities and
the offering. A prospectus supplement may include a discussion of any risk factors or other special considerations applicable to those
securities or to us. The supplement also may add, update or change information contained in this prospectus. If there is any inconsistency
between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus
supplement.
You
should read this prospectus, any prospectus supplement, any documents that we incorporate by reference in this prospectus and in any
prospectus supplement, and the additional information described below under “Where You Can Find More Information” and “Incorporation
of Certain Documents by Reference” before making an investment decision. You should rely only on the information contained or incorporated
by reference in this prospectus and any prospectus supplement. We have not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus is not an
offer to sell securities and it is not soliciting an offer to buy securities in any jurisdiction where the offer or sale is not permitted.
You
should not assume that the information in this prospectus, any prospectus supplement or any documents we incorporate by reference herein
or therein is accurate as of any date other than the date on the front of those documents. Our business, financial condition, results
of operations and prospects may have changed since those dates.
The
registration statement containing this prospectus, including exhibits to the registration statement, provides additional information
about us and the securities offered under this prospectus. That registration statement can be read at the SEC website mentioned under
the heading “Where You Can Find More Information” below.
We
may sell securities to underwriters who will sell the securities to the public on terms fixed at the time of sale. In addition, the securities
may be sold by us directly or through dealers or agents designated from time to time. If we, directly or through agents, solicit offers
to purchase the securities, we reserve the sole right to accept and, together with any agents, to reject, in whole or in part, any of
those offers.
Any
prospectus supplement will contain the names of the underwriters, dealers or agents, if any, together with the terms of offering, the
compensation of those underwriters and the net proceeds to us. Any underwriters, dealers or agents participating in the offering may
be deemed “underwriters” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).
Unless
the context requires otherwise, references to “Willamette Valley Vineyards,” the “Company,” “we,”
“our,” “ours” and “us” are to Willamette Valley Vineyards, Inc. and its subsidiaries.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the information requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act. In accordance with
the Exchange Act, we file reports, proxy statements and other information with the SEC. Such reports, proxy statements and other information
filed by us are available to the public free of charge at www.sec.gov. Copies of certain information filed by us with the SEC are also
available on our website at www.wvv.com.
This
prospectus omits some information contained in the registration statement of which this prospectus forms a part in accordance with SEC
rules and regulations. You should review the information and exhibits in the registration statement for further information about us
and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration
statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings.
You should review the complete document to evaluate these statements.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
SEC
rules allow us to “incorporate by reference” into this prospectus much of the information we file with the SEC, which means
that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate
by reference into this prospectus is considered to be part of this prospectus. This prospectus incorporates by reference the documents
listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (in each case,
other than those documents or the portions of those documents deemed to be furnished and not filed in accordance with SEC rules) after
the date of the initial registration statement and prior to effectiveness of the registration statement and after the date of this prospectus
but before the termination of the offering of the securities hereunder:
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 29, 2022; |
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, filed with the SEC on May 12, 2022; |
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our
Proxy Statement on Schedule 14A filed with the SEC on May 31, 2022; |
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the
description of our Series A Redeemable Preferred Stock contained in our Form 8-A12B filed with the SEC on October 28, 2015, as supplemented
by the “Description of Capital Stock” included in this prospectus and including any amendments or reports filed for the
purpose of updating such description; and |
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the
description of our shares of common stock contained in the Description of Securities filed as Exhibit 4.2 to our Annual
Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the SEC on March 11, 2020, as supplemented
by the “Description of Capital Stock” included in this prospectus and including any amendments or reports filed for the
purpose of updating such description. |
Because
we are incorporating by reference future filings with the SEC, this prospectus is continually updated and later information filed with
the SEC may update and supersede some of the information included or incorporated by reference in this prospectus. This means that you
must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any
document previously incorporated by reference have been modified or superseded.
We
will provide without charge to each person, including any beneficial owners, to whom this prospectus is delivered, upon his or her written
or oral request, a copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus
but not delivered with this prospectus, excluding exhibits to those documents unless they are specifically incorporated by reference
into those documents. You may request a copy of these documents by writing or telephoning us at the following address:
Willamette
Valley Vineyards, Inc.
8800
Enchanted Way SE
Turner,
Oregon 97392
(503)
588-9463
Attention:
Investor Relations (info@wvv.com)
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains “forward-looking statements” that represent our beliefs, expectations, projections and predictions about
future events. These statements are necessarily subjective and involve known and unknown risks, uncertainties and other important factors
that could cause our actual results, performance or achievements, or industry results, to differ materially from any future results,
performance or achievement described in or implied by such statements. Actual results may differ materially from the expected results
described in our forward-looking statements, including with respect to the correct measurement and identification of factors affecting
our business or the extent of their likely impact, the accuracy and completeness of publicly available information relating to the factors
upon which our business strategy is based or the success of our business.
In
some cases, forward-looking statements can be identified by terms such as “anticipates,” “believes,” “continue,”
“could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,”
“predicts,” “projects,” “should” or “will” or the negative thereof, variations thereof
and similar expressions. Such statements are based on management’s current expectations and are subject to risks and uncertainties
which may cause actual results to differ materially from those set forth in the forward-looking statements. There can be no assurance
that such expectations or any of the forward-looking statements will prove to be correct, and actual results could differ materially
from those projected or assumed in the forward-looking statements. We urge you to carefully review the disclosures we make concerning
risks and other factors that may affect our business and operating results, including those made in the section of this Prospectus entitled
“Risk Factors,” and in “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the year ended December
31, 2021, as such risk factors may be updated in subsequent SEC filings, as well as our other reports filed with the SEC and in any prospectus
supplement. We caution you not to place undue reliance on forward-looking statements, which speak only as of the date of this prospectus
or any prospectus supplement. We do not intend, and we undertake no obligation, to update any forward-looking information to reflect
events or circumstances after the date of this prospectus or any prospectus supplement or to reflect the occurrence of unanticipated
events, unless required by law to do so.
RISK
FACTORS
You
should carefully consider the risks under the heading “Risk Factors” beginning on page 15 of our Annual Report on Form 10-K
for the fiscal year ended December 31, 2021, filed with the SEC on March 29, 2022, which information is incorporated by reference in
this prospectus, as supplemented and updated by subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that we have
filed or will file with the SEC and the additional risks and other information in this prospectus, any prospectus supplement and the
documents incorporated by reference herein and therein before deciding to invest in our securities. If any of the identified risks actually
occur, they could materially adversely affect our business, financial condition, operating results or prospects and the trading price
of our securities. Additional risks and uncertainties that we do not presently know or that we currently deem immaterial may also impair
our business, financial condition, operating results and prospects and the trading price of our securities.
USE
OF PROCEEDS
We
intend to use the net proceeds from the sale of any of our securities for general corporate purposes, unless we state otherwise in a
prospectus supplement. We may temporarily invest funds that we do not immediately use in short- and medium-term marketable securities.
DIVIDEND
POLICY
Our
Series A Redeemable Preferred Stock are entitled to cumulative dividends accruing annually each year, at a rate of $0.22 per share per
annum, beginning on the first calendar day of the quarter following the applicable offering period for such shares, payable out of funds
legally available therefor, when and as approved by our board of directors. Dividends will accrue at a rate of 5.3% per annum based on
an established original issue price of such shares, which is equal to $4.15 per share regardless of the price actually received by the
Company upon original issuance of the shares, and regardless of the price paid in the aftermarket, if any. Dividends accrued but not
paid will not bear interest or dividends but will be added to the liquidation preference of the Series A Redeemable Preferred Stock until
declared and paid. The payment of dividends will depend upon a number of factors, including our liquidity, financial condition and results
of operations, strategic growth plans, tax considerations, statutory and regulatory limitations and general economic conditions. For
the foregoing reasons, there can be no assurance that we will pay any dividends in any future period. Accrued but unpaid dividends, whether
or not declared, will be added to the liquidation preference until paid, but will not bear additional dividends or earn interest or similar
returns.
We
have never paid dividends on our common stock and we have no expectation to pay such dividends in the foreseeable future. We are not
permitted to declare or pay dividends on our common stock unless and until we have paid all accrued but unpaid dividends, and any redemption
premium, owing on our Series A Redeemable Preferred Stock.
REDEMPTION
OF PREFERRED STOCK
Under
certain circumstances, the Company is entitled to redeem all, but not less than all, of the Series A Redeemable Preferred Stock then
outstanding. Any such redemption may occur at any time after June 1, 2021. If a redemption occurs, we will notify shareholders of record
of the redemption (including the redemption date) electronically or by mail not less than thirty (30) days prior to the record date for
such redemption. As of the record date, shares of Series A Redeemable Preferred Stock will be ineligible for future transfers and will
represent only the right to receive, upon tender of the shares, an amount in cash equal to the original issue price of $4.15 per share,
together with (i) all theretofore accrued but unpaid dividends; and (ii) a redemption premium amounting to 3% of the original issue price.
The redemption premium also will be payable upon the occurrence of any liquidation event that occurs during the redemption period. The
Series A Redeemable Preferred Stock will not earn dividends after the record date for redemption. As with other financial rights of the
Series A Redeemable Preferred Stock, the redemption price is equal to the original issue price, $4.15 per share, regardless of the actual
purchase price or the amount paid.
DESCRIPTION
OF CAPITAL STOCK
Capital
Stock Currently Outstanding
We
are authorized under our articles of incorporation, as amended, to issue up to 10,000,000 shares of preferred stock, in one or more series
as designated from time to time by our board of directors, and up to 10,000,000 shares of common stock. As of June 28, 2022 there were
4,964,529 shares of our common stock outstanding, and 8,483,862 shares of Series A Redeemable Preferred Stock outstanding.
Series
A Redeemable Preferred Stock
Dividends
Holders
of the Series A Redeemable Preferred Stock are entitled to receive, when, as and if declared by the board of directors, out of funds
legally available for the payment of dividends, cumulative cash dividends at the rate of 5.3% per annum of the original issue price of
such shares, which is $4.15 per share as described above. Dividends are thus $0.22 per share. Dividends on the Series A Redeemable Preferred
Stock accrue daily and are cumulative beginning on the first calendar day of the quarter following the applicable offering period for
such shares until the record date for redemption on the basis of such price. Accumulated dividends on our Series A Redeemable Preferred
Stock will not bear interest or further dividends, and holders of our Series A Redeemable Preferred Stock will not, except in the case
of the Company’s optional redemption of the Series A Redeemable Preferred Stock, be entitled to any dividends in excess of full
cumulative dividends.
Our
board of directors will not authorize and we will not declare, pay or set apart funds for the payment of any dividend or other distribution
with respect to any junior shares (defined below) (other than in shares of junior shares) unless all cumulative dividends with respect
to our Series A Redeemable Preferred Stock have been paid or funds have been set apart for payment of such dividends.
Optional
Redemption
We
may redeem all, but not less than all, of the Series A Redeemable Preferred Stock on or after June 1, 2021, at a redemption price equal
to the original issue price of such shares ($4.15 per share regardless of the price paid for such shares), plus all accrued and unpaid
dividends (whether or not earned or declared) to the redemption date, plus a redemption premium equal to 3% of the liquidation preference
for the Series A Redeemable Preferred Stock. A redemption in connection with a liquidation event (such as a merger, sale of all or substantially
all of the Company’s assets, or similar reorganization) would result in the payment of the redemption premium in addition to theretofore
accrued but unpaid dividends.
Ranking
The
Series A Redeemable Preferred Stock ranks: (i) senior to the common stock and any other shares of stock that we may issue in the future,
the terms of which specifically provide that such stock ranks junior to the Series A Redeemable Preferred Stock, in each case with respect
to payment of dividends and amounts upon liquidation, dissolution or winding up (“junior shares”); (ii) equal to any shares
of stock that we may issue in the future, the terms of which specifically provide that such stock ranks on parity with the Series A Redeemable
Preferred Stock, in each case with respect to payment of dividends and amounts upon liquidation, dissolution or winding up (“parity
shares”); (iii) junior to all other shares of stock issued by us, the terms of which specifically provide that such stock ranks
senior to the Series A Redeemable Preferred Stock, in each case with respect to payment of dividends and amounts upon liquidation, dissolution
or winding up (“senior shares”); and (iv) junior to all our existing and future indebtedness.
Liquidation
Preference
If
we merge, consolidate, sell all or substantially all of our assets, reorganize (with certain exceptions for recapitalizations and similar
events that do not affect the relative rights of the holders of our capital stock), or effect any other business combination, the effects
of which include the liquidation or termination of the Series A Redeemable Preferred Stock, then the holders of the Series A Redeemable
Preferred Stock will have the right to receive the original issue price per share, plus all accrued and unpaid dividends (whether or
not earned or declared) to, but excluding, the date of payment, before any payments are made to the holders of the common stock and any
other junior shares that may then exist. In addition, if the liquidation occurs during the redemption period, the holders of the Series
A Redeemable Preferred Stock would receive a redemption premium equal to 3% of the original issue price of $4.15 per share. The rights
of the holders of the Series A Redeemable Preferred Stock to receive the liquidation preference are subject to the proportionate rights
of holders of each other future series or class of parity shares and subordinate to the rights of senior shares.
Voting
Rights
Without
the approval of the holders of a majority of the shares of Series A Redeemable Preferred Stock, voting separately as a single class,
we may not pay any dividend or establish or maintain any sinking fund on any common stock or any class of preferred stock that is pari
passu with or junior to the Series A Redeemable Preferred Stock unless the Company has paid all accrued but unpaid dividends and
any redemption premium owing on our Series A Redeemable Preferred Stock. Other than the voting right described in the preceding sentence,
holders of the Series A Redeemable Preferred Stock generally do not have any voting rights, except as otherwise required by the Oregon
Business Corporation Act.
No
Maturity
The
Series A Redeemable Preferred Stock does not have any stated maturity and is not subject to any sinking fund or mandatory redemption.
Accordingly, the shares of the Series A Redeemable Preferred Stock will remain outstanding indefinitely unless we decide to redeem them.
No
Conversion
The
Series A Redeemable Preferred Stock is not, pursuant to its terms, convertible into or exchangeable for any other securities or property.
Special
Benefits for Holders of Series A Redeemable Preferred Stock
The
Company has offered the following additional benefits to each holder of Series A Redeemable Preferred Stock, and management expects to
continue to offer such benefits in the future:
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priority
wine allocations and facilities access; |
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a
25% discount on wine purchases made directly from the winery; |
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priority
access to winery suite reservations; |
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reports
on winery developments seeking shareholder feedback and involvement; |
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priority
access to appointment only vineyard tasting experiences; and |
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certain
other items of nominal value. |
The
value of these benefits, if any, is indeterminable and is not associated with the number of shares of Series A Redeemable Preferred Stock
one owns. Similarly, these rights may not be transferred separately from our Series A Redeemable Preferred Stock (although a transfer
of fewer than all of an investor’s preferred shares will allow both the transferor and the transferee to participate in such intangible
rights). We have not attempted to establish a value for these benefits, and we do not consider them material to the determination of
the price or value of our Series A Redeemable Preferred Stock.
Common
Stock
Voting
Rights
Holders
of the common stock are entitled to one vote for each share of common stock held of record on the applicable record date on all matters
submitted to a vote of shareholders. A corporate action voted on by shareholders generally is approved, provided a quorum is present,
if the votes cast within the voting group favoring the action exceed the votes cast opposing the action. Holders of the common stock
are not entitled to cumulate their votes in the election of directors.
Dividend
Rights
Holders
of the common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by the Board of Directors
out of funds legally available for that purpose, subject to any preferential dividend rights or other preferences granted to the holders
of any of the then-outstanding shares of preferred stock.
Rights
Upon Liquidation
In
the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, the holders of the common stock are entitled
to share ratably in all remaining assets available for distribution to shareholders after payment of, or provision for, our liabilities,
subject to prior distribution rights of shares of the preferred stock, if any, then outstanding.
Preemptive
Rights
Holders
of the common stock do not have any preemptive rights to purchase, subscribe for or otherwise acquire any unissued or treasury shares
or other of our securities.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock and our Series A Redeemable Preferred Stock is Equiniti Trust Company (“Equiniti”)
Equiniti’s address is: 1110 Centre Pointe Curve, Suite 101, Mendota Heights MN 55120-4100, and its telephone number is: 1-800-468-9716.
Nasdaq
Listing
The
Series A Redeemable Preferred Stock is listed on the Nasdaq Capital Market under the symbol “WVVIP.” As of June 28, 2022,
there were 10,000,000 shares of Series A Redeemable Preferred Stock authorized, of which 8,483,862 shares were outstanding, and 1,516,138
shares remained unissued. These shares are listed for trading on the Nasdaq Capital Market; however, as of June 28, 2022, trading of
these shares has been limited, and there is therefore no established trading market for these securities. We cannot offer assurances
that any such market will ever develop. Moreover, although these shares are listed on the Nasdaq Capital Market, the public float, number
of shares and market capitalization of this class of securities means that trading is and will remain relatively limited, and it is unlikely
a liquid market will develop for these shares.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “WVVI.” Shares of our Series A Redeemable Preferred
Stock are not convertible into or exchangeable for shares of our common stock, now or at any time in the future.
Anti-Takeover
Effects of our Articles of Incorporation and Bylaws and of Oregon Law
Our
Articles of Incorporation and the Oregon Business Corporation Act (the “Act”), contain provisions that may have the effect
of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal that a shareholder might consider
favorable, including a proposal that might result in the payment of a premium over the market price for the shares held by our shareholders.
Certain of these provisions are summarized in the following paragraphs.
Authorized
but Unissued Shares of Common Stock and Preferred Stock
We
are authorized under our articles of incorporation, as amended, to issue up to 10,000,000 shares of preferred stock, less the number
of shares of Series A Preferred Stock previously sold, in one or more series as designated from time to time by our board of directors.
These issuances require the approval of a majority of our outside directors. As of June 28 2022, we had 8,483,862 shares of preferred
stock outstanding leaving 1,516,138 shares of preferred stock available for issuance. As of June 28, 2022, we are authorized to issue
up 10,000,000 shares of common stock of which 4,964,529 are outstanding leaving 5,035,471 shares of common stock available for issuance.
The Oregon Business Corporation Act provides that certain significant transactions, including mergers, sales of all or substantially
all of the assets, and similar transactions, receive the affirmative vote of the holders of a majority of the shares of each class of
capital stock.
Cumulative
Voting
No
cumulative voting for directors is permitted.
Increase
in the Number of Directors
The
number of directors of the corporation shall be a minimum of two (2) and a maximum of eleven (11) as determined from time to time by
the Board of Directors. The number of directors may be increased or decreased from time to time by amendment of the Bylaws, but no decrease
shall have the effect of shortening the term of any incumbent director.
Staggered
Board of Directors; Removal of Directors
We
have a staggered Board of Directors. The Board of Directors is divided into three groups with each director holding office until the
date of the third annual meeting following the annual meeting at which such director was elected, and until her or his successors has
been elected and qualified. All or any number of the directors may be removed, for cause, at a meeting expressly called for that purpose
by a vote of the holders of the majority of the shares then entitled to vote at an election of directors or group of directors.
Advance
Notice Requirements for Shareholder Proposals and Director Nominations
To
be timely, a shareholder’s notice relating to the annual meeting shall be delivered to our Secretary at our principal executive
offices not less than 90 nor more than 120 days prior to the first anniversary of the date on which we first mailed our proxy materials
for the preceding year’s annual meeting of shareholders. However, if the date of the annual meeting is advanced by more than 30
days prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, then notice by the
shareholder to be timely must be delivered to our Secretary at our principal executive offices not later than the close of business on
the later of (i) the 90th day prior to such annual meeting or (ii) the 15th day following the day on which public announcement of the
date of such meeting is first made.
Special
meetings of the shareholders may be called by the President or by the Board of Directors and shall be called by the President (or in
the event of absence, incapacity, or refusal of the President, by the Secretary or any other officer) at the request of the holders of
not less than one-half of all the outstanding shares of the Company’s common stock entitled to vote at the meeting. The Series
A Redeemable Preferred Stock has no voting rights except as required by law, therefore the holders of the Series A Redeemable Preferred
Stock have no right to call a special meeting of shareholders, separately or in the aggregate.
Anti-Takeover
Effects of Oregon Law
Oregon
law contains certain provisions that may have the effect of delaying, deterring or preventing a change in control of the Company. ORS
60.801 et seq. imposes certain restrictions upon the voting of shares acquired in “control share acquisitions” and limits
a shareholder’s ability to vote in favor of a business combination when that shareholder has acquired shares of voting stock in
excess of a specified percentage of the voting stock of a public company. ORS 60.825 et seq. prohibits us, with certain exceptions, from
engaging in certain significant business transactions with an “interested person” (including a person who owns 15% or more
of the voting stock of a public company) for a period of three years following such person’s share acquisition date. The prohibited
business combinations include, among others, a merger or consolidation with, disposition of assets to, or issuance or redemption of stock
to or from, the acquiring person, or otherwise allowing the acquiring person to receive a disproportionate benefit as a shareholder.
Exceptions to this statutory prohibition include approval of the transaction at a shareholders meeting by holders of not less than a
two-thirds of the shares held by each voting group entitled to vote on the transaction, not counting shares as to which the acquiring
person has beneficial ownership or voting control, transactions approved by the board of directors prior to the acquiring person first
becoming an acquiring person, or, with respect to a merger, share exchange, consolidation, liquidation or distribution entered into with
the acquiring person, transactions where certain other requirements regarding the fairness of the consideration to be received by the
shareholders have been met. We may not exempt ourselves from coverage of this statute. These statutory provisions may have the effect
of delaying, deterring or preventing a change in control of the Company.
Capital
Stock Available for Future Issuance
Preferred
Stock
Our
articles of incorporation authorize our board of directors to issue from time to time up to 10,000,000 shares of preferred stock, reduced
by the number of shares of Series A Redeemable Preferred Stock previously sold. Any remaining shares of preferred stock may be designated
and issued in one or more series with the preferences, limitations and relative rights thereof as may be fixed from time to time by the
board of directors for each series before the issuance of any shares of that series. In addition, after the board of directors has established
a series of preferred stock, the board of directors may increase or decrease the number of shares contained in the series, but not below
the number of shares then issued, or eliminate the series where no shares have been issued. Actions taken by our board of directors with
regard to the authorization and issuance of preferred stock require the approval of a majority of our outside directors. Our board of
directors has determined that each of our directors other than Mr. Bernau and Mr. Ellis is an “outside director” for purposes
of authorizing any series of preferred stock and setting forth the preferences, limitations and relative rights thereto.
After
giving effect to the designation of the Series A Redeemable Preferred Stock, our articles of incorporation entitle us to issue up to
1,516,138 additional shares of preferred stock in one or more series upon the approval of our board of directors, with the approval of
a majority of our outside directors but without the approval of the holders of the Series A Redeemable Preferred Stock. The following
outlines the general provisions of the shares of currently undesignated preferred stock, no par value or “preferred stock,”
that we may offer from time to time. The specific terms of a series of preferred stock will be described in the applicable prospectus
supplement relating to that series of preferred stock. The following description of the preferred stock and any description of preferred
stock in a prospectus supplement is only a summary and is subject to and qualified in its entirety by reference to the articles of amendment
to our articles of incorporation, as amended, relating to the particular series of preferred stock, a copy of which we have filed, or
will file, with the SEC in connection with the sale of any series of preferred stock.
General
Under
our amended and restated articles of incorporation, our board of directors is authorized, without shareholder approval, to adopt resolutions
providing for the issuance of up to 10,000,000 shares of preferred stock, no par value, in one or more series (reduced by the total number
of shares of Series A Redeemable Preferred Stock previously issued and sold). As of June 28, 2022, 8,483,862 shares of Series A Redeemable
Preferred Stock are issued and outstanding, and no shares of any other class of our preferred stock are issued and outstanding.
Our
board of directors may fix the voting powers, designations, preferences, rights, qualifications, limitations and restrictions of each
series of preferred stock that we may offer.
The
prospectus supplement relating to a particular series of preferred stock will contain a description of the specific terms of that series,
including, as applicable:
| |
● |
the
title, designation, number of shares and stated or liquidation value of the preferred stock; |
| ● | the
dividend amount or rate or method of calculation, the payment dates for dividends and the place or places where the dividends will be
paid, whether dividends will be cumulative or noncumulative, and, if cumulative, the dates from which dividends will begin to accrue; |
| |
● |
any
conversion or exchange rights; |
| |
● |
whether
the preferred stock will be subject to redemption and the redemption price and other terms and conditions relative to the redemption
rights; |
| |
● |
any
liquidation rights; |
| |
● |
any
sinking fund provisions; |
| |
● |
the
exchange or market, if any, where the preferred stock will be listed or traded; and |
| |
● |
any
other rights, preferences, privileges, limitations and restrictions that are not inconsistent with the terms of the our amended and
restated articles of incorporation. |
Upon
the issuance and payment for shares of preferred stock, the shares will be fully paid and nonassessable. Except as otherwise may be specified
in the prospectus supplement relating to a particular series of preferred stock, holders of preferred stock will not have any preemptive
or subscription rights to acquire any class or series of our capital stock and each series of preferred stock will rank on a parity in
all respects with each other series of our preferred stock and prior to our common stock as to dividends and any distribution of our
assets.
The
authorization of the preferred stock could have the effect of making it more difficult or time consuming for a third party to acquire
a majority of our outstanding voting stock or otherwise effect a change of control. Shares of the preferred stock may also be sold to
third parties that indicate that they would support the board of directors in opposing a hostile takeover bid. The availability of the
preferred stock could have the effect of delaying a change of control and of increasing the consideration ultimately paid to our shareholders.
The
board of directors may authorize the issuance of preferred stock for capital-raising activities, acquisitions, joint ventures or other
corporate purposes that have the effect of making an acquisition of Willamette Valley Vineyards more difficult or costly, as could also
be the case if the board of directors were to issue additional common stock for such purposes. See “Description of Capital Stock
– Anti-Takeover Effects of our Articles of Incorporation and Bylaws and of Oregon Law.”
Redemption
If
so specified in the applicable prospectus supplement, a series of preferred stock may be redeemable at any time, in whole or in part,
at our option, and may be mandatorily redeemable or convertible. Restrictions, if any, on the repurchase or redemption by us of any series
of our preferred stock will be described in the applicable prospectus supplement relating to that series. Generally, any redemption of
our preferred stock will be subject to prior Federal Reserve approval. Any partial redemption of a series of preferred stock would be
made in the manner described in the applicable prospectus supplement relating to that series.
Upon
the redemption date of shares of preferred stock called for redemption or upon our earlier call and deposit of the redemption price,
all rights of holders of the preferred stock called for redemption will terminate, except for the right to receive the redemption price.
Dividends
Holders
of each series of preferred stock will be entitled to receive cash dividends only when, as and if declared by our board of directors
out of funds legally available for dividends. The rates or amounts and dates of payment of dividends will be described in the applicable
prospectus supplement relating to each series of preferred stock. Dividends will be payable to holders of record of preferred stock on
the record dates fixed by our board of directors. Dividends on any series of preferred stock may be cumulative or noncumulative, as described
in the applicable prospectus supplement.
Our
board of directors may not declare, pay or set apart funds for payment of dividends on a particular series of preferred stock unless
full dividends on any other series of preferred stock that ranks equally with or senior to such series of preferred stock with respect
to the payments of dividends have been paid or sufficient funds have been set apart for payment for either of the following:
| |
● |
all
prior dividend periods of each such series of preferred stock that pay dividends on a cumulative basis; or |
| |
● |
the
immediately preceding dividend period of each such series of preferred stock that pays dividends on a noncumulative basis. |
Partial
dividends declared on shares of any series of preferred stock and other series of preferred stock ranking on an equal basis as to dividends
will be declared pro rata. A pro rata declaration means that the ratio of dividends declared per share to accrued dividends per share
will be the same for all series of preferred stock of equal priority.
Liquidation
Preference
In
the event of the liquidation, dissolution or winding-up of us, holders of each series of preferred stock will have the right to receive
distributions upon liquidation in the amount described in the applicable prospectus supplement relating to each series of preferred stock,
plus an amount equal to any accrued but unpaid dividends. These distributions will be made before any distribution is made on our common
stock or on any securities ranking junior to such preferred stock upon liquidation, dissolution or winding-up.
However,
holders of the shares of preferred stock will not be entitled to receive the liquidation price of their shares until we have paid or
set aside an amount sufficient to pay in full the liquidation preference of any class or series of our capital stock ranking senior as
to rights upon liquidation, dissolution or winding up. Unless otherwise provided in the applicable prospectus supplement, neither a consolidation
or merger of the Company with or into another corporation nor a merger of another corporation with or into the Company, nor a sale or
transfer of all or part of the Company’s assets for cash or securities will be considered a liquidation, dissolution or winding
up of Willamette Valley Vineyards.
If
the liquidation amounts payable to holders of preferred stock of all series ranking on a parity regarding liquidation are not paid in
full, the holders of the preferred stock of these series will have the right to a ratable portion of our available assets up to the full
liquidation preference. Holders of these series of preferred stock or such other securities will not be entitled to any other amounts
from us after they have received their full liquidation preference.
Conversion
and Exchange
The
prospectus supplement will indicate whether and on what terms the shares of any future series of preferred stock will be convertible
into or exchangeable for shares of any other class, series or security of Willamette Valley Vineyards or any other corporation or any
other property (including whether the conversion or exchange is mandatory, at the option of the holder or our option, the period during
which conversion or exchange may occur, the initial conversion or exchange price or rate and the circumstances or manner in which the
amount of common or preferred stock or other securities issuable upon conversion or exchange may be adjusted). It will also indicate
for preferred stock convertible into common stock, the number of shares of common stock to be reserved in connection with, and issued
upon conversion of, the preferred stock (including whether the conversion or exchange is mandatory, the initial conversion or exchange
price or rate and the circumstances or manner in which the amount of common stock issuable upon conversion or exchange may be adjusted)
at the option of the holder or our option and the period during which conversion or exchange may occur.
Voting
Rights
The
holders of shares of preferred stock will have no voting rights, except:
| |
● |
as
otherwise stated in the applicable prospectus supplement; |
| |
● |
as
otherwise stated in the applicable certificate of designation or articles of amendment to our articles of incorporation establishing
the series of such preferred stock; and |
| |
● |
as
otherwise required by applicable law. |
Transfer
Agent and Registrar
The
transfer agent, registrar, dividend paying agent and depositary, if any, for any preferred stock offering will be stated in the applicable
prospectus supplement.
Description
of Debt Securities
This
summary, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms
and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will generally
apply to any future debt securities 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 we offer under a prospectus
supplement may differ from the terms we describe below.
The
debt securities may be either secured or unsecured and will either be senior debt securities or subordinated debt securities. We will
issue the senior notes under the senior indenture which we will enter into with one or more trustees. We will issue the subordinated
notes under the subordinated indenture which we will enter into with one or more trustees. We have filed forms of these documents as
exhibits to the registration statement of which this prospectus forms a part. We use the term “indentures” to refer to both
the senior indenture and the subordinated indenture.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “debenture
trustee” to refer to either the senior trustee or the subordinated trustee, as applicable.
The
following summaries of the material provisions of the senior notes, the subordinated notes and the indentures are subject to, and qualified
in their entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge
you to read the applicable prospectus supplements related to the debt securities that we sell under this prospectus, as well as the complete
indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and
the subordinated indenture are identical.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of debt securities, including, to the extent applicable:
| ● | the
principal amount being offered and, if a series, the total amount authorized and the total amount outstanding; |
| ● | any
limit on the amount that may be issued; |
| ● | whether
or not we will issue the series of debt securities in global form and, if so, the terms and who the depositary will be; |
| ● | the
principal amount due at maturity and whether the debt securities will be issued with any original issue discount; |
| ● | whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a U.S. person
for U.S. federal income tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
| ● | the
annual interest rate, which may be fixed or variable, or the method for determining the rate, 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; |
| ● | whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | whether
or not the debt securities will be senior or subordinated, and the terms of the subordination of any series of subordinated debt; |
| ● | the
place where payments will be payable; |
| ● | restrictions
on transfer, sale or other assignment, if any; |
| ● | our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | the
date, if any, after which, the conditions upon which, and the price at which we may, at our option, redeem the series of debt securities
pursuant to any optional or provisional redemption provisions, and any other applicable terms of those redemption provisions; |
| ● | provisions
for a sinking fund, purchase or other analogous fund, if any; |
| ● | the
date, if any, on which, and the price 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; |
| ● | whether
the indenture will restrict our ability and/or the ability of our subsidiaries to |
| ○ | incur
additional indebtedness; |
| ○ | issue
additional securities; |
| ○ | pay
dividends and make distributions in respect of our capital stock and the capital stock of our subsidiaries; |
| ○ | place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
| ○ | make
investments or other restricted payments; |
| ○ | sell
or otherwise dispose of assets; |
| ○ | enter
into sale-leaseback transactions; |
| ○ | engage
in transactions with shareholders and affiliates; |
| ○ | issue
or sell stock of our subsidiaries; or |
| ○ | effect
a consolidation or merger; |
| ● | whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
| ● | a
discussion of any material or special U.S. federal income tax considerations applicable to the debt securities; |
| ● | information
describing any book-entry features; |
| ● | the
procedures for any auction and remarketing, if any; |
| ● | the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
| ● | if
other than U.S. dollars, the currency in which the series of debt securities will be denominated; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any events of default
that are in addition to those described in this prospectus or any covenants provided with respect to the debt securities that are in
addition to those described above, and any terms which may be required by us or advisable under applicable laws or regulations or advisable
in connection with the marketing of the debt securities. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplements the terms on which a series of debt securities may be convertible into or exchangeable
for common stock or other securities of ours or a third party, including the conversion or exchange rate, as applicable, or how it will
be calculated, and the applicable conversion or exchange period. We will include provisions as to 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 our securities or the securities
of a third party that the holders of the series of debt securities receive upon conversion or exchange would, under the circumstances
described in those provisions, be subject to adjustment, or pursuant to which those holders would, under those circumstances, receive
other property upon conversion or exchange, for example in the event of our merger or consolidation with another entity.
Consolidation,
Merger or Sale
The
indentures in the form initially filed as exhibits to the registration statement of which this prospectus forms a part do not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor of ours or acquirer of such assets must assume all of our obligations under the indentures
and the debt securities.
If
the debt securities are convertible into our other securities, the person with whom we consolidate or merge or to whom we sell all of
our property must make provisions for the conversion of the debt securities into securities which the holders of the debt securities
would have received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default Under the Indentures
Unless
otherwise specified in the applicable prospectus supplement, the following are events of default under the indentures with respect to
any series of debt securities that we may issue:
| ● | if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been validly extended; |
| ● | if
we fail to pay the principal, or premium, if any, or to make payment required by any sinking fund or analogous fund when due and payable
and the time for payment has not been validly extended; |
| ● | if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the debenture 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 debenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding
debt securities of that series may, by notice to us in writing (and to the debenture trustee if notice is given by such holders), declare
the unpaid principal, 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 series of debt securities
then outstanding shall be due and payable without any notice or other action on the part of the debenture 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.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the debenture 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 debenture 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 debenture trustee, or exercising any trust or power conferred on the debenture
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 debenture 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 only have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies, if: |
| ● | the
holder has given written notice to the debenture 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, and
such holders have offered reasonable indemnity to the debenture trustee, to institute the proceeding as trustee; and |
| ● | the
debenture 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 debenture trustee regarding our compliance with specified covenants in the indentures.
Modification
of Indenture; Waiver
We
and the debenture trustee may modify an indenture without the consent of any holders with respect to specific matters, including, without
limitation:
| ● | to
fix any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
| ● | to
comply with the provisions described above under “Consolidation, Merger or Sale”; |
| ● | to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; |
| ● | to
evidence and provide for the acceptance of appointment under the indenture by a successor trustee; |
| ● | to
provide for uncertificated debt securities in addition to or in place of certificated securities and to make all appropriate changes
for such purpose; |
| ● | to
evidence and provide for the acceptance of appointment under the indenture by a successor trustee; |
| ● | to
add to, delete from, or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issuance,
authentication and delivery of debt securities of any series; |
| ● | to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series authorized pursuant
to the indentures, to establish the form of any certifications required to be furnished pursuant to the indentures or any series or to
add to the rights of the holders of any series of debt securities; |
| ● | to
add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, 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 of our rights or powers under the indenture; or |
| ● | to
change anything that does not adversely affect the rights of any holder of debt securities of any series in any material respect. |
In
addition, under the indentures, the rights of holders of debt securities of any series may be changed by us and the debenture 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, we and the debenture trustee may only make the following changes with the consent of each holder of
any outstanding debt securities affected:
| ● | extending
the fixed maturity of the 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 debt securities; or |
| ● | reducing
the percentage of debt securities the holders of which are required to consent to any supplemental indenture. |
Discharge
The
indentures provide that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for certain obligations, including obligations to:
| ● | register
the transfer or exchange of debt securities of the series; |
| ● | replace
mutilated, destroyed, lost or stolen debt securities of the series; |
| ● | maintain
paying agencies; |
| ● | compensate
and indemnify the debenture trustee; and |
| ● | appoint
any successor trustee |
In
order to exercise our rights to be discharged, we must deposit with the debenture trustee money or government obligations, or a combination
of both, sufficient to pay all of the principal, 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 otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, New York, New York, known as DTC, or another depositary named by us and identified in a prospectus supplement with respect
to that series.
At
the option of the holder, subject to the terms of the indentures 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 indentures and the limitations applicable to global securities set forth in the applicable prospectus supplements,
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 not impose a service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges applicable to or associated with such registration of transfer or exchange.
We
will name in the applicable prospectus supplements 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 any series being redeemed in part 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 Debenture Trustee
The
debenture 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 debenture
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 debenture trustee is under no obligation to exercise any of the powers given it by the indentures 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 may make certain payments by
check which we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in a prospectus supplement,
we will designate an office or agency of the debenture trustee in the city of New York 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 debenture trustee for the payment of the principal of or any premium or interest on any debt securities
which 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
indentures and the debt securities will be governed by and construed in accordance with the laws of the state of New York, except to
the extent that the Trust Indenture Act is applicable.
Subordination
of Subordinated Debt Securities
The
subordinated debt securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement. The indentures in the form initially filed as exhibits to the registration statement of which this
prospectus forms a part do not limit the amount of indebtedness which we may incur, including senior indebtedness or subordinated indebtedness,
and do not limit us from issuing any other debt, including secured debt or unsecured debt. Additional or different subordination provisions
may be described in a prospectus supplement relating to a particular series of debt securities.
Description
of Warrants
This
summary, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms
and provisions of the warrants that we may offer under this prospectus, which consist of warrants to purchase our common stock, preferred
stock and/or debt securities in one or more series. Warrants may be offered independently or together with our common stock, preferred
stock, debt securities and/or rights offered by any prospectus supplement, and may be attached to or separate from those securities.
While the terms we have summarized below will generally apply to any future warrants we may offer under this prospectus, we will describe
the particular terms of any warrants that we may offer in more detail in the applicable prospectus supplement. The terms of any warrants
we offer under a prospectus supplement may differ from the terms we describe below.
We
will issue the warrants directly or under a warrant agreement which we will enter into with a warrant agent to be selected by us. Each
series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant
agent, all as set forth in the prospectus supplement relating to the particular issue of offered warrants. We use the term “warrant
agreement” to refer to any of these warrant agreements. We use the term “warrant agent” to refer to the warrant agent
under any of these warrant agreements. The warrant agent will act solely as an agent of ours in connection with the warrants and will
not act as an agent for the holders or beneficial owners of the warrants.
The
following summary of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by
reference to, all of the provisions of the warrant agreement applicable to a particular series of warrants. We urge you to read the applicable
prospectus supplements related to the warrants that we sell pursuant to this prospectus, as well as the complete warrant agreements that
contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplements the terms relating to a series of warrants.
If
warrants for the purchase of our common stock or preferred stock are offered, the prospectus supplements will describe the following
terms, to the extent applicable:
| ● | the
offering price and the aggregate number of warrants offered; |
| ● | the
total number of shares that can be purchased if a holder of the warrants exercises them and, in the case of warrants for preferred stock,
the designation, total number and terms of the series of preferred stock that can be purchased upon exercise; |
| ● | the
designation and terms of any series of preferred stock with which the warrants are being offered and the number of warrants being offered
with each share of common stock or preferred stock; |
| ● | the
date on and after which the holder of the warrants can transfer them separately from the related common stock or series of preferred
stock; |
| ● | the
number of shares of common stock or preferred stock that can be purchased if a holder exercises the warrant and the price at which such
common stock or preferred stock may be purchased upon exercise, including, if applicable, any provisions for changes to or adjustments
in the exercise price and in the securities or other property receivable upon exercise; |
| ● | the
terms of any rights to redeem or call, or accelerate the expiration of, the warrants; |
| ● | the
date on which the right to exercise the warrants begins and the date on which that right expires; |
| ● | the
number of warrants outstanding, if any; |
| ● | a
discussion of any material U.S. federal income tax considerations applicable to the warrants; |
| ● | the
terms, if any, on which we may accelerate the date by which the warrants must be exercised; |
| ● | whether
the warrants are issued pursuant to a warrant agreement with a warrant agent or issued directly by us; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the warrants. |
Warrants
for the purchase of common stock or preferred stock will be in registered form only.
If
warrants for the purchase of debt securities are offered, the prospectus supplement will describe the following terms, to the extent
applicable:
| ● | the
offering price and the aggregate number of warrants offered; |
| ● | the
currencies in which the warrants are being offered; |
| ● | the
designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities that can be purchased if
a holder exercises a warrant; |
| ● | the
designation and terms of any series of debt securities with which the warrants are being offered and the number of warrants offered with
each such debt security; |
| ● | the
date on and after which the holder of the warrants can transfer them separately from the related series of debt securities; |
| ● | the
principal amount of the series of debt securities that can be purchased if a holder exercises a warrant and the price at which and currencies
in which such principal amount may be purchased upon exercise; |
| ● | the
terms of any rights to redeem or call the warrants; |
| ● | the
date on which the right to exercise the warrants begins and the date on which such right expires; |
| ● | the
number of warrants outstanding, if any; |
| ● | a
discussion of any material U.S. federal income tax considerations applicable to the warrants; |
| ● | the
terms, if any, on which we may accelerate the date by which the warrants must be exercised; |
| ● | whether
the warrants are issued pursuant to a warrant agreement with a warrant agent or issued directly by us; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the warrants. |
Warrants
for the purchase of debt securities will be in registered form only.
A
holder of warrant certificates may exchange them for new certificates of different denominations, present them for registration of transfer
and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement.
Until any warrants to purchase common stock or preferred stock are exercised, holders of the warrants will not have any rights of holders
of the underlying common stock or preferred stock, including any rights to receive dividends or to exercise any voting rights, except
to the extent set forth under “Warrant Adjustments” below. Until any warrants to purchase debt securities are exercised,
the holder of the warrants will not have any of the rights of holders of the debt securities that can be purchased upon exercise, including
any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce covenants in the applicable
indenture.
Exercise
of Warrants
Each
holder of a warrant is entitled to purchase the number of shares of common stock or preferred stock or principal amount of debt securities,
as the case may be, at the exercise price described in the applicable prospectus supplements. After the close of business on the day
when the right to exercise terminates (or a later date if we extend the time for exercise), unexercised warrants will become void.
A
holder of warrants may exercise them by following the general procedure outlined below:
| ● | delivering
to us or to the warrant agent the payment required by the applicable prospectus supplements to purchase the underlying security; |
| ● | properly
completing and signing the reverse side of the warrant certificate representing the warrants; and |
| ● | delivering
the warrant certificate representing the warrants to us or to the warrant agent within five business days of receipt of payment of the
exercise price. |
If
the holder complies with the procedures described above, the warrants will be considered to have been exercised when we receive or the
warrant agent receives, as applicable, payment of the exercise price, subject to the transfer books for the securities issuable upon
exercise of the warrant not being closed on such date. After the holder has completed those procedures and subject to the foregoing,
we will, as soon as practicable, issue and deliver to such holder the common stock, preferred stock or debt securities that such holder
purchased upon exercise. If the holder exercises fewer than all of the warrants represented by a warrant certificate, a new warrant certificate
will be issued to such holder for the unexercised amount of warrants. Holders of warrants will be required to pay any tax or governmental
charge that may be imposed in connection with transferring the underlying securities in connection with the exercise of the warrants.
Amendments
and Supplements to the Warrant Agreements
We
may amend or supplement a warrant agreement without the consent of the holders of the applicable warrants to cure ambiguities in the
warrant agreement, to cure, correct or supplement a defective provision in the warrant agreement, or to provide for other matters under
the warrant agreement that we and the warrant agent deem necessary or desirable, so long as, in each case, such amendments or supplements
do not materially adversely affect the interests of the holders of the warrants.
Warrant
Adjustments
Unless
the applicable prospectus supplements state otherwise, the exercise price of, and the number of securities covered by, a common stock
warrant or preferred stock warrant will be adjusted proportionately if we subdivide or combine our common stock or preferred stock, as
applicable.
In
addition, unless the prospectus supplements state otherwise, if we, without payment therefor:
| ● | issue
capital stock or other securities convertible into or exchangeable for common stock or preferred stock, or any rights to subscribe for,
purchase or otherwise acquire any of the foregoing, as a dividend or distribution to holders of our common stock or preferred stock; |
| ● | pay
any cash to holders of our common stock or preferred stock other than a cash dividend paid out of our current or retained earnings or
other than in accordance with the terms of the preferred stock; |
| ● | issue
any evidence of our indebtedness or rights to subscribe for or purchase our indebtedness to holders of our common stock or preferred
stock; or |
| ● | issue
common stock or preferred stock or additional stock or other securities or property to holders of our common stock or preferred stock
by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement; |
then
the holders of common stock warrants and preferred stock warrants, as applicable, will be entitled to receive upon exercise of the warrants,
in addition to the securities otherwise receivable upon exercise of the warrants and without paying any additional consideration, the
amount of stock and other securities and property such holders would have been entitled to receive had they held the common stock or
preferred stock, as applicable, issuable under the warrants on the dates on which holders of those securities received or became entitled
to receive such additional stock and other securities and property.
Except
as stated above, the exercise price and number of securities covered by a common stock warrant or preferred stock warrant, and the amounts
of other securities or property to be received, if any, upon exercise of those warrants, will not be adjusted or provided for if we issue
those securities or any securities convertible into or exchangeable for those securities, or securities carrying the right to purchase
those securities or securities convertible into or exchangeable for those securities.
Holders
of common stock warrants and preferred stock warrants may have additional rights under the following circumstances:
| ● | certain
reclassifications, capital reorganizations or changes of the common stock or preferred stock, as applicable; |
| ● | certain
share exchanges, mergers, or similar transactions involving us and which result in changes of the common stock or preferred stock, as
applicable; or |
| ● | certain
sales or dispositions to another entity of all or substantially all of our property and assets. |
If
one of the above transactions occurs and holders of our common stock or preferred stock are entitled to receive stock, securities or
other property with respect to or in exchange for their securities, the holders of the common stock warrants and preferred stock warrants
then outstanding, as applicable, will be entitled to receive upon exercise of their warrants the kind and amount of shares of stock and
other securities or property that they would have received upon the applicable transaction if they had exercised their warrants immediately
before the transaction.
Description
of Rights
This
summary, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms
and provisions of the rights that we may offer under this prospectus, which consist of rights to purchase our common stock, preferred
stock and/or debt securities in one or more series. Rights may be offered independently or together with our common stock, preferred
stock, debt securities and/or warrants offered by any prospectus supplement, and may be attached to or separate from those securities.
While the terms we have summarized below will generally apply to any future rights we may offer pursuant to this prospectus, we will
describe the particular terms of any rights that we may offer in more detail in the applicable prospectus supplements. The terms of any
rights we offer under a prospectus supplement may differ from the terms we describe below.
The
applicable prospectus supplements relating to any rights that we offer will include specific terms of any offering of rights for which
this prospectus is being delivered, including the following, to the extent applicable:
| ● | the
date for determining the persons entitled to participate in the rights distribution; |
| ● | the
price, if any, per right; |
| ● | the
exercise price payable for each share of common stock, share of preferred stock or debt security upon the exercise of the rights; |
| ● | the
number of rights issued or to be issued to each holder; |
| ● | the
number and terms of the shares of common stock, shares of preferred stock or debt securities that may be purchased per each right; |
| ● | the
extent to which the rights are transferable; |
| ● | any
other terms of the rights, including the terms, procedures and limitations relating to the exchange and exercise of the rights; |
| ● | the
respective dates on which the holder’s ability to exercise the rights will commence and will expire; |
| ● | the
number of rights outstanding, if any; |
| ● | a
discussion of any material U.S. federal income tax considerations applicable to the rights; |
| ● | the
extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; and |
| ● | if
applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering
of such rights. |
The
description in the applicable prospectus supplements of any rights that we may offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable rights agreement and/or rights certificate, which will be filed with the SEC in connection
therewith.
Description
of Units
This
summary, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms
and provisions of the units that we may offer under this prospectus, which may consist of one or more shares of common stock, shares
of preferred stock, debt securities, warrants, rights or any combination of such securities. While the terms we have summarized below
will generally apply to any future units we may offer pursuant to this prospectus, we will describe the particular terms of any units
that we may offer in more detail in the applicable prospectus supplements. The terms of any units we offer under a prospectus supplement
may differ from the terms we describe below.
The
applicable prospectus supplements relating to any units that we offer will include specific terms of any offering of units for which
this prospectus is being delivered, including the following, to the extent applicable:
| ● | the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities
may be held or transferred separately; |
| ● | whether
we will apply to have the units traded on a securities exchange or securities quotation system |
| ● | a
discussion of any material U.S. federal income tax considerations applicable to the units; and |
| ● | how,
for U.S. federal income tax purposes, the purchase price paid for the units is to be allocated among the component securities. |
The
description in the applicable prospectus supplements of any units that we may offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable unit agreement, which will be filed with the SEC in connection therewith.
PLAN
OF DISTRIBUTION
We
may sell the securities offered pursuant to this prospectus and any accompanying prospectus supplements from time to time in one or more
transactions:
| ● | to
or through one or more underwriters or dealers; |
| ● | through
any combination of these methods of sale. |
Our
securities may be offered and sold from time to time in one or more transaction at:
| ● | a
fixed price or prices, which may be changed; |
| ● | market
prices prevailing at the time of sale; |
| ● | prices
related to the prevailing market prices; or |
Any
of the prices at which we sell securities may be at a discount to market prices. Broker-dealers or the purchasers of the securities,
as applicable, may also receive from us compensation that is not expected to exceed that customary in the types of transactions involved.
Each
prospectus supplement, to the extent applicable, will describe the number and terms of the securities to which such prospectus supplement
relates, including:
| ● | any
over-allotment options under which underwriters, if any, may purchase additional securities; |
| ● | the
name or names of any underwriters or agents with whom we have entered into an arrangement with respect to the sale of such securities; |
| ● | the
public offering or purchase price of such securities; |
| ● | any
underwriting discounts or commissions or agency fees or other items constituting underwriter or agent compensation; |
| ● | any
discounts, commissions or concessions allowed or reallowed or paid to dealers; |
| ● | any
securities exchanges or markets on which the securities may be listed; and |
| ● | the
net proceeds we will receive from such sale. |
Underwritten
Offerings
If
underwriters are used in the sale of any securities, the securities will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions described above. The applicable prospectus supplement will name any underwriter
involved in a sale of securities. Such securities may be either offered to the public through underwriting syndicates represented by
managing underwriters, or directly by underwriters. Underwriters may sell the securities to or through dealers, and such dealers may
receive compensation in the form of discounts. Generally, the underwriters’ obligations to purchase the securities will be subject
to conditions precedent and the underwriters will be obligated to purchase all of the securities if they purchase any of the securities.
We may use underwriters with whom we have a material relationship. We will describe any such underwriters in the applicable prospectus
supplement, naming the underwriter and the nature of any such relationship.
Direct
Sales and Sales through Agents
We
may sell securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities
Act, with respect to any sale of those securities. We also may, from time to time, authorize dealers or agents to offer and sell these
securities, upon such terms and conditions as may be set forth in the applicable prospectus supplement, if applicable. In order to comply
with the securities laws of certain states, if applicable, the securities offered will be sold in such jurisdictions only through registered
or licensed brokers or dealers. In addition, in certain states securities may not be sold unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
This prospectus, one or more prospectus supplements, and the registration statement of which this prospectus forms a part may be used
in conjunction with one or more other registration statements to the extent permitted by the Securities Act and the rules and regulations
promulgated thereunder.
Rights
Offerings
We
also may sell directly to investors through subscription rights distributed to our shareholders on a pro rata basis. In connection with
any distribution of subscription rights to shareholders, if all of the underlying securities are not subscribed for, we may sell the
unsubscribed shares of our securities directly to third parties or may engage the services of one or more underwriters, dealers or agents,
including standby underwriters, to sell the unsubscribed securities to third parties.
We
may also sell securities in one or more of the following transactions:
| ● | block
transactions (which may involve crosses) in which a broker-dealer may sell all or a portion of the shares as agent but may position and
resell all or a portion of the block as principal to facilitate the transaction; |
| ● | purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account; |
| ● | ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
| ● | sales
“at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise, for securities;
and |
| ● | sales
in other ways not involving a market maker or established trading markets, including direct sales to purchasers |
We
may also enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. In connection with those derivatives, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by
us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received
from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions
will be an underwriter and will be identified in the applicable prospectus supplement or in a post-effective amendment to the registration
statement of which this prospectus forms a part.
Any
dealers or agents that participate in the distribution of securities may be deemed to be underwriters under the Securities Act, and in
such event, any discounts or commissions received by them and any profit realized by them on the resale of securities they realize may
be deemed to be underwriting discounts and commissions under the Securities Act.
Indemnification
Underwriters,
dealers and agents and remarketing firms may be entitled, under agreements entered into with us, to indemnification against and contribution
toward certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments that the
agents, dealers, underwriters or remarketing firms may be required to make.
Stabilization
In
connection with any offering of the securities hereby, certain underwriters and selling group members and their respective affiliates
may engage in transactions that stabilize, maintain or otherwise affect the market price of the applicable securities. These transactions
may include stabilization transactions pursuant to which these persons may bid for or purchase securities for the purpose of stabilizing
their market price.
The
underwriters in an offering of securities may also create a “short position” for their account by selling more securities
in connection with the offering than they are committed to purchase from us. In that case, the underwriters could cover all or a portion
of the short position by either purchasing securities in the open market following completion of the offering of these securities or
by exercising any over-allotment option granted to them by us. In addition, the managing underwriter may impose “penalty bids”
under contractual arrangements with other underwriters, which means that it can reclaim from an underwriter (or any selling group member
participating in the offering) for the account of the other underwriters, the selling concession for the securities that are distributed
in the offering but subsequently purchased for the account of the underwriters in the open market. Any of the transactions described
in this paragraph or comparable transactions that are described in any accompanying prospectus supplement may result in the maintenance
of the price of the securities at a level above that which might otherwise prevail in the open market. None of the transactions described
in this paragraph or in an accompanying prospectus supplement are required to be taken by an underwriter and, if they are undertaken,
may be discontinued at any time.
Under
applicable rules and regulations under the Exchange Act, under certain circumstances a person engaged in the distribution of the securities
offered under this prospectus and the accompanying prospectus supplement may not simultaneously engage in market making activities with
respect to our securities for a specified period prior to the commencement of such distribution.
Passive
Market-Making on Nasdaq
Any
underwriters who are qualified market makers on the Nasdaq Global Select Market may engage in passive market making transactions in our
common stock on the Nasdaq Global Select Market in accordance with Rule 103 of Regulation M. 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
making bid, however, the passive market making bid must then be lowered when certain purchase limits are exceeded.
Remarketing
Arrangements
Offered
securities may also be offered and sold in connection with a remarketing upon their purchase, in accordance with a redemption or repayment
pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for
us. We will identify any remarketing firm and describe the terms of its agreements, if any, with us and its compensation in the applicable
prospectus supplement.
Delayed
Delivery Contracts
If
indicated in the applicable prospectus supplement, we will authorize dealers acting as our agents to solicit offers by institutions to
purchase securities covered by this prospectus from us at the public offering price set forth in the relevant prospectus supplement under
delayed delivery contracts providing for payment and delivery on the date or dates stated in the relevant prospectus supplement. Each
delayed delivery contract will be for an amount not less than, and the aggregate principal amount of securities sold pursuant to delayed
delivery contracts shall be not less nor more than, the respective amounts stated in the applicable prospectus supplement. Institutions
with whom delayed delivery contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions, and other institutions, but will in all cases be subject to our
approval. Delayed delivery contracts will not be subject to any conditions except (i) the purchase by an institution of the securities
covered by its delayed delivery contracts may not at the time of delivery be prohibited under the laws of any jurisdiction in the United
States to which the institution is subject, and (ii) if the securities are being sold to underwriters, we will be required to have sold
to such underwriters the total principal amount of the securities less the principal amount thereof covered by delayed delivery contracts.
The underwriters and any other agents will not have any responsibility in respect of the validity or performance of delayed delivery
contracts.
Other
Relationships
Underwriters,
dealers, agents and remarketing firms may engage in transactions with, or perform services for, us and our affiliates in the ordinary
course of business. Unless we specify otherwise in the related prospectus supplement, each class or series of securities will be a new
issue with no established trading market, other than shares of our common stock, which are listed on the Nasdaq Global Select Market.
It is possible that one or more underwriters may make a market in our securities, but will not be obligated to do so and may discontinue
any market making at any time without notice. Therefore, no assurance can be given as to the liquidity of the trading market for our
securities.
LEGAL
MATTERS
Certain
legal matters in connection with the securities offered hereby will be passed upon for us by Davis Wright Tremaine LLP, Portland,
Oregon, and Sheppard Mullin Richter & Hampton LLP, Los Angeles, California.
EXPERTS
The
financial statements of Willamette Valley Vineyards, Inc. incorporated in this Registration Statement on Form S-3 by reference from Willamette
Valley Vineyard, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2021 have been audited by Moss Adams LLP, an
independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements
have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
| Item
14. |
Other
Expenses of Issuance and Distribution |
The
following table shows the costs and expenses payable in connection with the sale and distribution of the securities being registered.
All amounts reflected below are estimated.
| |
Amount |
| |
(In
thousands) |
| Securities
and Exchange Commission Registration Fee |
$1,854
|
| Accounting
Fees and Expenses |
* |
| Legal
Fees and Expenses |
* |
| Printing
Fees, Marketing and Expenses |
* |
| Transfer
Agent Fees and Expenses |
* |
| Miscellaneous |
* |
| |
|
| Total |
* |
| * | These
fees and expenses are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated
at this time. |
| Item
15. |
Indemnification
of Directors and Officers |
Sections
60.387 et seq. of the Oregon Business Corporation Act, or the Act, authorize and, in certain circumstances, require, a corporation’s
board of directors to grant, indemnification to directors and officers on terms sufficiently broad to permit indemnification under certain
circumstances for liabilities arising under the Securities Act. Our articles of incorporation and bylaws require us to indemnify our
directors and executive officers, our employees and agents, and certain other persons, to the maximum extent permitted under the Act.
The directors and officers of the Company also may be indemnified against liability they may incur for serving in such capacity pursuant
to a liability insurance policy we maintain for such purpose. We also have entered into an indemnification agreement with Mr. Bernau
for a broad range of liabilities he may incur in connection with the Company’s operations.
Item 17. Undertakings.
| (a) | The
undersigned registrant hereby undertakes: |
| (1) | To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To
include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; |
| (iii) | To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; |
| provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the registration statements is on Form S-3 and
the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished
to the SEC by the undersigned registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement. |
| (2) | That,
for the purpose of determining any liability under the Securities Act, 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 purposes of determining any liability under the Securities Act to any purchaser: |
| (i) | If
the undersigned registrant is relying on 430B: |
| (a) | 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 |
| (b) | 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 incorporate 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. |
| (ii) | If
the undersigned registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be a part of and included in the registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such date of first use. |
| (5) | That,
for purposes 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 registrants; |
| (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. |
| (b) | The
undersigned registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, 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. |
The
undersigned also hereby undertakes that:
| (a) | For
the purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared
effective. |
| (b) | For
purposes of determining any liability under the Securities Act, 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. |
| (c) | The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of section 310 of the Trust Indenture Act ( the “TIA”) in accordance with the rules and regulations
prescribed by the SEC under section 305(b)(2) of the TIA. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Turner, Oregon, on this 30th day of June 2022.
| |
Willamette
Valley Vineyards, Inc. |
|
| |
|
|
|
| |
By:
|
/s/
James W. Bernau |
|
| |
Name:
|
James
W. Bernau |
|
| |
Title:
|
President
& Chief Executive Officer |
|
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James W. Bernau and John A.
Ferry as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this registration
statement (and to any registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended), and to file the
same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or their substitutes, each acting alone, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
indicated on June 30, 2022.
| Signature |
|
Title |
|
Date |
|
|
|
|
|
| /s/
James W. Bernau |
|
Chairperson
of the Board, Chief |
|
June
30, 2022 |
| James
W. Bernau |
|
Executive
Officer and President (Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/
John A. Ferry |
|
Chief
Financial Officer |
|
June
30, 2022 |
| John
A. Ferry |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Sean M. Cary |
|
Director |
|
June
30, 2022 |
| Sean
M. Cary |
|
|
|
|
| |
|
|
|
|
| /s/
James L. Ellis |
|
Director |
|
June
30, 2022 |
| James
L. Ellis |
|
|
|
|
| |
|
|
|
|
| /s/
Craig Smith |
|
Director |
|
June
30, 2022 |
| Craig
Smith |
|
|
|
|
| |
|
|
|
|
| /s/
Stan G. Turel |
|
Director |
|
June
30, 2022 |
| Stan
G. Turel |
|
|
|
|
| |
|
|
|
|
| /s/
Leslie Copland |
|
Director |
|
June
30, 2022 |
| Leslie
Copland |
|
|
|
|
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