Unassociated Document
As
filed with the Securities and Exchange Commission on November 12,
2010
REGISTRATION
NO. 333-163906
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 2
to
FORM
S-1
on
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GLOBE
SPECIALTY METALS, INC.
(Exact
name of Registrant as specified in its charter)
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DELAWARE
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20-2055624
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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ONE
PENN PLAZA
250
WEST 34TH STREET,
SUITE 4125
NEW
YORK, NY 10119
(212)
798-8122
(Address,
including zip code, and telephone number of Registrant’s principal executive
offices)
JEFF
BRADLEY
CHIEF
EXECUTIVE OFFICER
ONE
PENN PLAZA
250
WEST 34TH STREET,
SUITE 4125
NEW
YORK, NY 10119
(212)
798-8122
(Name,
address, including zip code, and telephone number of agent for
service)
THE
COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
JEFFREY
E. JORDAN, ESQ.
ARENT
FOX LLP
1050
CONNECTICUT AVENUE, N.W.
WASHINGTON,
D.C. 20036
(202)
857-6473
APPROXIMATE DATE OF COMMENCEMENT OF
PROPOSED SALE TO THE PUBLIC: FROM TIME TO TIME AFTER THE EFFECTIVE DATE
OF THIS REGISTRATION STATEMENT AS DETERMINED BY THE SELLING
STOCKHOLDERS.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large
Accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer x
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Smaller
reporting company ¨
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(Do
not check if a smaller reporting company)
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Pursuant to Rule 429 under the
Securities Act of 1933, the prospectus included in this Registration Statement
is a combined prospectus that also relates to the Registration Statement (File
No. 333-160973), previously filed by the Registrant on
Form S-1.
The Registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933, as
amended, or until the registration statement shall become effective on such date
as the Commission, acting pursuant to Section 8(a), may
determine.
EXPLANATORY
NOTE
This
Registration Statement on Form S-3 constitutes a post-effective amendment to our
registration statement on Form S-1 (No. 333-163906) into a registration
statement on Form S-3. The S-1 was declared effective by the Securities and
Exchange Commission on May 28, 2010. We are filing this post-effective amendment
on Form S-3 for the purpose of converting the Registration Statement on Form S-1
into a Registration Statement on Form S-3 because we are now eligible to use
Form S-3. All filing fees payable in connection with the registration of these
securities were previously paid in connection with the filing of the
S-1.
The information in this prospectus is
not complete and may be changed. The selling stockholders may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer
to sell these securities nor does it solicit an offer to buy these securities in
any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION
DATED
November 12, 2010
PROSPECTUS
11,484,226
Shares
GLOBE
SPECIALTY METALS, INC.
Common
Stock
The selling stockholders named in this
prospectus are offering up to 11,484,226 shares of our common stock. The
selling stockholders will receive all proceeds from the sale of the common
stock, and therefore we will not receive any of the proceeds from their sale of
the common stock.
Our common stock is listed on the
NASDAQ Global Select Market under the symbol “GSM.” On November 2, 2010, the
closing price of our common stock on the NASDAQ Global Select Market was $15.95
per share. We expect that the selling stockholders will sell their shares of our
common stock at prevailing market prices or privately negotiated prices. See
also “Plan of Distribution.”
Investing in our common stock
involves risks. See “Risk Factors” on page 2.
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 November __, 2010.
TABLE
OF CONTENTS
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Page
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Prospectus
Summary
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1
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Risk
Factors
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2
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Use
of Proceeds
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3
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Selling
Stockholders
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3
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Plan
of Distribution
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4
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Legal
Matters
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6
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Experts
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6
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Where
You Can Find More Information
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6
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Incorporation
of Certain Information by Reference
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6
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This
prospectus is part of a registration statement that we filed with the
Commission, using a “shelf registration” process. Under this shelf
registration process, the selling stockholders may, from time to time, offer and
sell up to 11,484,226 shares of our common stock, as described in this
prospectus, in one or more offerings. This prospectus provides you with a
general description of the securities the selling stockholders may offer. You
should carefully read both this prospectus, together with additional information
described under the headings “Where You Can Find More Information” and
“Incorporation of Certain Information by Reference,” before buying securities in
this Offering.
You
should rely only on the information contained in or incorporated by reference
into this prospectus. Neither we nor the selling stockholders have authorized
anyone to provide you with additional or 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, nor is it a solicitation of an
offer to buy, the common stock in any jurisdiction where the offer or sale is
not permitted. You should not assume that the information contained in this
prospectus is accurate as of any date other than the date on the front cover of
this prospectus, or that the information contained in any document incorporated
by reference is accurate as of any date other than the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus
or any sale of a security.
PROSPECTUS
SUMMARY
This
summary does not contain all of the information that you should consider in
making an investment decision. You should read the entire prospectus and the
documents incorporated by reference before investing. Unless otherwise stated in
this prospectus, references to “we,” “us” or “our company” refer to Globe
Specialty Metals, Inc. and its subsidiaries.
Our
Business
Overview
We are one of the largest and most
efficient producers of silicon metal and silicon-based alloys, with
approximately 100,000 metric tons (MT) of silicon metal capacity (excluding Dow
Corning Corporation’s portion of the capacity of our Alloy, West Virginia plant)
and 120,000 MT of silicon-based alloys capacity. Silicon metal, our
principal product, is used as a primary raw material in making silicone
compounds, aluminum and polysilicon. Our silicon-based alloys are used as raw
materials in making steel, automotive components and ductile iron. We control
the supply of most of our raw materials, and we capture, recycle and sell most
of the by-products generated in our production processes.
Our products are currently produced in
six principal operating facilities located in the United States and Argentina.
Additionally, we operate facilities in Poland and China.
Our
principal offices are located at One Penn Plaza, Suite 4125, 250 West
34th Street, New York, NY 10119. Our telephone number there is
(212) 798-8122.
Risk Factors
Please read the section entitled “Risk
Factors” for a discussion of the risk factors you should carefully consider
before deciding to invest in our common stock.
The Offering
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Issuer
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Globe
Specialty Metals, Inc.
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Common
Stock offered by the selling stockholders
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A
total of up to 11,484,226 shares held by the selling stockholders.
The selling stockholders may or may not sell any or all of the shares that
have been registered by us.
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Common
Stock outstanding
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74,866,374 shares
of common stock outstanding. Our outstanding stock
excludes:
• 3,820,000 shares
of common stock issuable upon the exercise of stock options outstanding as
of October 5, 2010 at a
weighted-average exercise price of $4.82 per share; and
• 633,813 shares
of common stock reserved for future awards under our stock
plan.
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Use
of Proceeds
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We
will not receive any proceeds from the sale of our common stock by the
selling stockholders pursuant to this prospectus.
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Risk
Factors
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Please
read “Risk Factors” beginning on page 2 of this prospectus for a
discussion of factors you should carefully consider before deciding to
purchase shares of our common stock.
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NASDAQ
Global Select Market symbol
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“GSM”
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RISK
FACTORS
An investment in our common stock
involves a high degree of risk. You should consider and read carefully all of
the risks and uncertainties described below and in our annual report on
Form 10-K, together with all of the other information included or
incorporated by reference in this prospectus, before deciding to invest in our
common stock. If any of the events described in the risk factors
actually occur, our business, business prospects, financial condition, results
of operations or cash flows could be materially affected. In any such case, the
trading price of our common stock could decline, and you could lose all or part
of your investment. This prospectus also contains or incorporates by reference
forward-looking statements that involve risks and uncertainties. Our actual
results could differ materially from those anticipated in the forward-looking
statements as a result of specific factors, including the risks
described.
Risks
Associate with our Business and Industry
For a description of the risks
associated with our business and industry please see the section entitled “Risk
Factors” of our Annual Report on Form 10-K for the year ended June 30,
2010.
Risks
Related to the Offering
A substantial portion of our total
outstanding shares may be sold into the market at any time. This could cause the
market price of our common stock to drop significantly, regardless of our
financial results.
All of the shares being sold in this
offering will be freely tradable without restrictions or further registration
under the federal securities laws, unless held by our “affiliates” as that term
is defined in Rule 144 under the Securities Act. Sales of a substantial
number of shares of our common stock, or the perception in the market that the
holders of a large number of shares intend to sell shares, could reduce the
market price of our common stock.
The concentration of our capital
stock ownership among our largest stockholders, and their affiliates, will limit
your ability to influence corporate matters.
To the
best of our knowledge, our four largest stockholders, including our Executive
Chairman, together beneficially own approximately 33% of our outstanding common
stock. Consequently, these stockholders have significant influence over all
matters that require approval by our stockholders, including the election of
directors and approval of significant corporate transactions. This concentration
of ownership may limit your ability to influence corporate matters, and as a
result, actions may be taken that you may not view as beneficial.
Our stock price may be volatile, and
purchasers of our common stock could incur substantial
losses.
Our stock price may be volatile. The
stock market in general has experienced extreme volatility that has often been
unrelated to the operating performance of particular companies. As a result of
this volatility, you may not be able to sell your common stock at or above the
price at which you purchase the shares. The market price for our common stock
may be influenced by many factors, including:
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the
success of competitive products or
technologies;
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regulatory
developments in the United States and foreign
countries;
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developments
or disputes concerning patents or other proprietary
rights;
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the
recruitment or departure of key
personnel;
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quarterly
or annual variations in our financial results or those of companies that
are perceived to be similar to us;
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market
conditions in the industries in which we compete and issuance of new or
changed securities analysts’ reports or
recommendations;
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the
failure of securities analysts to cover our common stock or changes in
financial estimates by
analysts;
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the
inability to meet the financial estimates of analysts who follow our
common stock;
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investor
perception of our company and of the industry in which we compete;
and
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general
economic, political and market
conditions.
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Provisions of our certificate of
incorporation and by-laws could discourage potential acquisition proposals and
could deter or prevent a change in control.
Some provisions in our certificate of
incorporation and by-laws, as well as Delaware statutes, may have the effect of
delaying, deferring or preventing a change in control. These provisions,
including those providing for the possible issuance of shares of our preferred
stock and the right of our Board of Directors to amend the bylaws, may make it
more difficult for other persons, without the approval of the Board of
Directors, to make a tender offer or otherwise acquire a substantial number of
shares of our common stock or to launch other takeover attempts that a
stockholder might consider to be in his or her best interest. These provisions
could limit the price that some investors might be willing to pay in the future
for shares of our common stock.
USE
OF PROCEEDS
We will
not receive any proceeds from the sale of our common stock by the selling
stockholders pursuant to this prospectus.
SELLING
STOCKHOLDERS
The selling stockholders may from time
to time offer and sell pursuant to this prospectus any or all of the shares of
common stock set forth below in the column entitled “Shares Being Offered
Pursuant to This Prospectus.” When we refer to the selling stockholders in this
prospectus, we mean those persons listed in the table below, as well as the
permitted transferees, pledgees, donees, assignees, successors and others who
later come to hold any of the selling stockholders’ interests other than through
a public sale.
The table below sets forth the name of
each selling stockholder and the number of shares of common stock that each
selling stockholder may offer pursuant to this prospectus. Each of the selling
stockholders is one of our officers or directors.
Based on the information provided to us
by the selling stockholders, assuming that the selling stockholders sell all of
the shares of common stock beneficially owned by them that have been registered
by us and do not acquire any additional shares of common stock, each selling
stockholder will not beneficially own any shares of common stock other than the
shares of common stock appearing in the column entitled “Shares Beneficially
Owned After This Offering.” We cannot advise you as to whether the selling
stockholders will in fact sell any or all of such shares. In addition, the
selling stockholders may have sold, transferred or otherwise disposed of, or may
sell, transfer or otherwise dispose of, at any time and from time to time, the
shares of common stock after the date on which each selling stockholder actually
provided the information set forth in the table below.
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Percentage Beneficially Owned
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Name
and Address of Beneficial Owner
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Shares
Beneficially
Owned Before
the Offering
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Shares Being
Offered
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Shares
Beneficially
Owned After
the
Offering
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Before
Offering
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After
Offering
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Alan
Kestenbaum (1)
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11,885,205 |
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10,760,205 |
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1,125,000 |
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15 |
% |
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2 |
% |
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Arden
Clay Sims (2)
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1,035,082 |
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660,082 |
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375,000 |
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1 |
% |
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* |
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Stuart
Eizenstat (3)
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19,794 |
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110 |
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19,684 |
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* |
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* |
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Ted
Heilman (4)
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50,419 |
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50,419 |
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0 |
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* |
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* |
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Marlin
Perkins
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15,410 |
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13,410 |
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2,000 |
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* |
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* |
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*
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less
than one (1%) percent
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(1)
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Includes
77,658 shares subject to an escrow agreement and forfeiture in certain
cases. Shares Beneficially Owned includes 375,000 shares issuable upon
exercise of options exercisable within 60 days of October 5,
2010.
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(2)
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Includes
19,112 shares subject to an escrow agreement and forfeiture in certain
cases. Shares Beneficially Owned includes 125,000 shares issuable upon
exercise of options exercisable within 60 days of October 5,
2010.
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(3)
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Shares
Beneficially Owned includes 6,250 shares issuable upon exercise of options
exercisable within 60 days of October 5,
2010.
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(4)
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Includes
419 shares subject to an escrow agreement and forfeiture in certain
cases.
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PLAN
OF DISTRIBUTION
The
selling stockholders, or their pledgees, donees, transferees, or any of their
successors in interest selling shares received from a named selling stockholder
as a gift, partnership distribution or other non-sale-related transfer after the
date of this prospectus (all of whom may be selling stockholders), may sell the
shares of common stock offered by this prospectus from time to time on any stock
exchange or automated interdealer quotation system on which the common stock is
listed or quoted at the time of sale, in the over-the-counter market, in
privately negotiated transactions or otherwise, at fixed prices that may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at prices otherwise negotiated. The selling
stockholders may sell the shares by one or more of the following methods,
without limitation:
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•
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block
trades in which the broker or dealer so engaged will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the
transaction;
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purchases
by a broker or dealer as principal and resale by the broker or dealer for
its own account pursuant to this
prospectus;
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an
exchange distribution in accordance with the rules of any stock exchange
on which the common stock is
listed;
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ordinary
brokerage transactions and transactions in which the broker solicits
purchases;
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•
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privately
negotiated transactions;
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•
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through
the writing of options on the shares, whether or not the options are
listed on an options exchange;
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through
the distribution of the shares by any selling stockholder to its partners,
members or stockholders;
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one
or more underwritten offerings on a firm commitment or best efforts basis;
and
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•
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any
combination of any of these methods of
sale.
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These transactions may include crosses,
which are transactions in which the same broker acts as an agent on both sides
of the trade. The selling stockholders may also transfer the shares by gift. The
selling stockholders will act independently of us in making decisions with
respect to the timing, manner and size of each sale of the shares offered
hereby. The selling stockholders have advised us that they have not entered into
any agreements, arrangements or understandings for the sale of any of their
shares.
The selling stockholders may sell
shares directly to market makers acting as principals and/or to brokers and
dealers, acting as agents for themselves or their customers. Brokers or dealers
may arrange for other brokers or dealers to participate in effecting sales of
the shares. Broker-dealers may agree with a selling stockholder to sell a
specified number of the shares at a stipulated price per share. If the
broker-dealer is unable to sell shares acting as agent for a selling
stockholder, it may purchase as principal any unsold shares at the stipulated
price. Broker-dealers who acquire shares as principals may thereafter resell the
shares from time to time in transactions in any stock exchange or automated
interdealer quotation system on which the common stock is then listed, at prices
and on terms then prevailing at the time of sale, at prices related to the
then-current market price or in negotiated transactions. Broker-dealers may use
block transactions and sales to and through broker-dealers, including
transactions of the nature described above. The selling stockholders may also
sell the shares in accordance with Rule 144 or Rule 144A under the
Securities Act. In order to comply with the securities laws of some states, if
applicable, the shares may be sold in these jurisdictions only through
registered or licensed brokers or dealers. In addition, in some states the
shares may not be sold unless they have been registered or qualified for sale or
an exemption from registration or qualification requirements is available and is
complied with.
From time to time, one or more of the
selling stockholders may pledge, hypothecate or grant a security interest in
some or all of the shares owned by them. The pledgees, secured parties or person
to whom the shares have been hypothecated will, upon foreclosure in the event of
default, be deemed to be selling stockholders. The number of a selling
stockholder’s shares offered under this prospectus will decrease as and when it
takes such actions. The plan of distribution for that selling stockholder’s
shares will otherwise remain unchanged. In addition, a selling stockholder may,
from time to time, sell the shares short, and, in those instances, this
prospectus may be delivered in connection with the short sales and the shares
offered under this prospectus may be used to cover short sales.
A selling stockholder may enter into
hedging transactions with broker-dealers and the broker-dealers may engage in
short sales of the common stock in the course of hedging the positions they
assume with that selling stockholder, including, without limitation, in
connection with distributions of the shares by those broker-dealers. A selling
stockholder may enter into option or other transactions with broker-dealers, who
may then resell or otherwise transfer those shares pursuant to this prospectus,
as supplemented or amended to reflect such transactions. A selling stockholder
may also loan or pledge the shares offered by this prospectus to a broker-dealer
and the broker-dealer may sell the shares offered by this prospectus so loaned
or upon a default may sell or otherwise transfer the pledged shares offered by
this prospectus.
To the extent required under the
Securities Act, the aggregate amount of selling stockholders’ shares being
offered and the terms of the offering, the names of any agents, brokers, dealers
or underwriters, any applicable commission and other material facts with respect
to a particular offer will be set forth in an accompanying prospectus supplement
or a post-effective amendment to the registration statement of which this
prospectus is a part, as appropriate. Any underwriters, dealers, brokers or
agents participating in the distribution of the shares may receive compensation
in the form of underwriting discounts, concessions, commissions or fees from a
selling stockholder and/or purchasers of selling stockholders’ shares, for whom
they may act (which compensation as to a particular broker-dealer might be less
than or in excess of customary commissions). Neither we nor any selling
stockholder can presently estimate the amount of any such
compensation.
The selling stockholders and any
underwriters, brokers, dealers or agents that participate in the distribution of
the shares may be deemed to be “underwriters” within the meaning of the
Securities Act, and any discounts, concessions, commissions or fees received by
them and any profit on the resale of the shares sold by them may be deemed to be
underwriting discounts and commissions. If a selling stockholder is deemed to be
an underwriter, the selling stockholder may be subject to certain statutory
liabilities including, but not limited to Sections 11, 12 and 17 of the
Securities Act and Rule 10b-5 under the Securities Exchange Act. Selling
stockholders who are deemed underwriters within the meaning of the Securities
Act will be subject to the prospectus delivery requirements of the Securities
Act. The SEC staff is of a view that selling stockholders who are registered
broker-dealers or affiliates of registered broker-dealers may be underwriters
under the Securities Act. In compliance with the guidelines of the Financial
Industry Regulatory Authority (FINRA), the maximum commission or discount to be
received by any FINRA member or independent broker-dealer may not exceed 8% for
the sale of any shares registered hereunder. We will not pay any compensation or
give any discounts or commissions to any underwriter in connection with the
shares being offered by this prospectus.
The selling stockholders and other
persons participating in the sale or distribution of the shares will be subject
to applicable provisions of the Securities Exchange Act, and the rules and
regulations under the Securities Exchange Act, including Regulation M. This
regulation may limit the timing of purchases and sales of any of the shares by
the selling stockholders and any other person. The anti-manipulation rules under
the Securities Exchange Act may apply to sales of shares in the market and to
the activities of the selling stockholders and their affiliates.
Regulation M may restrict the ability of any person engaged in the
distribution of the shares to engage in market-making activities with respect to
the particular shares being distributed. These restrictions may affect the
marketability of the shares and the ability of any person or entity to engage in
market-making activities with respect to the common stock. The selling
stockholders have acknowledged that they understand their obligations to comply
with the provisions of the Securities Exchange Act and the rules thereunder
relating to stock manipulation, particularly Regulation M.
We may suspend offers and sales of the
shares pursuant to the registration statement to which this prospectus relates
in certain circumstances.
We have agreed to pay all expenses
incident to the registration of the shares, but not including broker or
underwriting discounts and commissions or any transfer taxes relating to the
sale or disposition of the shares by the selling stockholders.
The aggregate proceeds to the selling
stockholders from the sale of the shares offered by them will be the purchase
price of the shares less discounts and commissions, if any. If the shares are
sold through underwriters or broker-dealers, the selling stockholders will be
responsible for underwriting discounts and commissions and/or agent’s
commissions. We will not receive any proceeds from sales of any shares by the
selling stockholders.
We cannot assure you that the selling
stockholders will sell all or any portion of the shares offered by this
prospectus. In addition, we cannot assure you that a selling stockholder will
not transfer shares by other means not described in this
prospectus.
LEGAL
MATTERS
The
validity of the securities offered in this prospectus is being passed upon for
us by Arent Fox LLP, Washington DC.
EXPERTS
The consolidated financial statements
of Globe Specialty Metals, Inc. and subsidiary companies as of June 30, 2010 and
2009, and for each of the years in the three-year period ended June 30, 2010,
and management’s assessment of the effectiveness of internal control over
financial reporting as of June 30, 2010 have been incorporated by reference
herein in reliance upon the reports of KPMG LLP, independent registered public
accounting firm, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
The audit report on the effectiveness
of internal control over financial reporting as of June 30, 2010, contains an
explanatory paragraph that states:
The
Company acquired Core Metals Group Holdings LLC (Core Metals) on April 1, 2010,
and management excluded Core Metals’ internal control over financial reporting
from its assessment of the effectiveness of the Company’s internal control over
financial reporting as of June 30, 2010. The acquisition of Core Metals
contributed approximately 4.4 percent of the Company’s total revenue for the
year ended June 30, 2010 and accounted for approximately 8.2 percent of the
Company’s total assets as of June 30, 2010. KPMG’s audit of internal control
over financial reporting of the Company also excluded an evaluation of the
internal control over financial reporting of Core Metals.
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with the SEC a
registration statement on Form S-3, which includes exhibits and schedules,
under the Securities Act with respect to this offering of our securities. The
registration statement contains additional information about us and our stock.
The rules and regulations of the SEC permit us to omit from this prospectus
certain information included in the registration statement. We refer you to the
registration statement for further information about us, our stock and this
offering. The registration statement and its exhibits and schedules, as well as
any other documents that we have filed with the SEC, can be read and copied at
the SEC’s public reference room at 100 F Street, N.E.,
Washington, D.C. 20549-1004. The public may obtain information about the
operation of the public reference room by calling the SEC at 1-800-SEC-0330. In
addition, the SEC maintains a website at http://www.sec.gov that contains the
registration statement and other reports, proxy and information statements and
information that we file electronically with the SEC.
We file annual, quarterly and current
reports, proxy statements and other information with the SEC and make these
filings available on our website. You may read and copy any reports, statements
or other information on file at the public reference rooms. You can also request
copies of these documents, for a copying fee, by writing to the SEC, or you can
review these documents on the SEC’s website, as described above. In addition, we
provide electronic or paper copies of our filings free of charge upon
request.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC permits us to incorporate by
reference in this prospectus some information that is contained in other
documents we file with the SEC. This means that we may disclose important
information by referring you to other documents that contain the information,
including documents that we file after the date of this prospectus. The
information that is incorporated by reference is considered to be part of this
prospectus.
We incorporate by reference the
documents listed below:
1. Our
Form 10-K for the year ended June 30, 2010, filed with the SEC on September 28,
2010, as amended on October 22, 2010 and November 12, 2010;
2. Our
definitive proxy statement filed with the SEC on October 28,
2010;
3. Our
Form 8-K filed with the SEC on April 6, 2010;
4. Our
Form 8-K filed with the SEC on July 2, 2010;
5. Our
Form 8-K filed with the SEC on August 19, 2010;
6. Our
Form 8-K filed with the SEC on August 31, 2010;
7. Our
Form 8-A, filed with the SEC on July 28, 2009;
8. Each
document that we file after the date of the initial filing of the Post-Effective
Amendment of which this prospectus is a part under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act and prior to the time that such
Post-Effective Amendment is declared effective; and
9. Each
document that we file after the effective date of the Post-Effective Amendment
of which this prospectus is a part under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act and prior to the time that the offering pursuant ot
this prospectus is terminated.
Information in this prospectus may add
to, update or change information in a previously filed document incorporated by
reference in this prospectus. In that case, you should rely on the information
in this prospectus. Information in a document filed after the date of this
prospectus may add to, update or change information in this prospectus or in a
previously filed document incorporated by reference in this prospectus. In that
case, you should rely on the information in the later filed
document.
We will provide to each person,
including any beneficial owner, to whom a prospectus is delivered, a copy of any
or all of the reports or documents that we incorporate by reference in this
prospectus contained in the registration statement (except exhibits to the
documents that are not specifically incorporated by reference) at no cost to
you, by writing or calling us at:
Globe
Specialty Metals, Inc.
One Penn
Plaza, Suite 4125
250 West
34th Street
New York,
NY 10119
(212) 798-8122
Information about us, including the
documents incorporated by reference to this prospectus, is also available at our
website at http://www.glbsm.com. However, the information in our
website is not a part of this prospectus, and other than the documents
specifically incorporated by reference, is not incorporated by reference into
this prospectus.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM 14.
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an
itemization of the various costs and expenses, all of which we will pay, in
connection with the issuance and distribution of the securities being
registered. All amounts other than the registration fee are
estimated.
|
SEC
registration fee
|
|
$ |
2,183 |
|
|
|
|
|
|
|
|
Accounting
fees and expenses
|
|
|
20,000 |
|
|
|
|
|
|
|
|
Legal
fees and expenses
|
|
|
5,000 |
|
|
|
|
|
|
|
|
Miscellaneous
expenses
|
|
|
5,000 |
|
|
|
|
|
|
|
|
Total
|
|
$ |
32,183 |
|
ITEM 15.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our certificate of incorporation and
bylaws provide that each person who was or is made a party or is threatened to
be made a party to or is otherwise involved (including, without limitation, as a
witness) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
a director or an officer of Globe Specialty Metals, Inc. or is or was serving at
our request as a director, officer, or trustee of another corporation, or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or trustee or in
any other capacity while serving as a director, officer or trustee, shall be
indemnified and held harmless by us to the fullest extent authorized by the
Delaware General Corporation Law against all expense, liability and loss
(including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by
such.
Section 145 of the Delaware
General Corporation Law permits a corporation to indemnify any director or
officer of the corporation against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with any action, suit or proceeding brought by reason of the fact
that such person is or was a director or officer of the corporation, if such
person acted in good faith and in a manner that he or she reasonably believed to
be in, or not opposed to, the best interests of the corporation, and, with
respect to any criminal action or proceeding, if he or she had no reason to
believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on
behalf of the corporation), indemnification may be provided only for expenses
actually and reasonably incurred by any director or officer in connection with
the defense or settlement of such an action or suit if such person acted in good
faith and in a manner that he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be provided if such person shall have been adjudged to be
liable to the corporation, unless and only to the extent that the court in which
the action or suit was brought shall determine that the defendant is fairly and
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
Pursuant to Section 102(b)(7) of
the Delaware General Corporation Law, Article Eighth of our certificate of
incorporation eliminates the liability of a director to us for monetary damages
for such a breach of fiduciary duty as a director, except for liabilities
arising:
|
|
·
|
from
any breach of the director’s duty of loyalty to
us;
|
|
|
·
|
from
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law;
|
|
|
·
|
under
Section 174 of the Delaware General Corporation
Law; and
|
|
|
·
|
from
any transaction from which the director derived an improper personal
benefit.
|
We carry insurance policies insuring
our directors and officers against certain liabilities that they may incur in
their capacity as directors and officers.
ITEM
16. EXHIBITS
The following exhibits are included
herein or incorporated herein by reference:
INDEX
TO EXHIBITS
|
Exhibit
|
|
|
|
No.
|
|
Description
|
| |
|
|
|
| |
3.1
|
|
Amended
and Restated Certificate of Incorporation*
|
| |
3.2
|
|
Certificate
of Amendment to the Amended and Restated Certificate of
Incorporation*
|
| |
3.3
|
|
Amended
and Restated Bylaws**
|
| |
5.1
|
|
Legal opinion of Arent Fox
LLP***
|
| |
23.1
|
|
Consent of KPMG
LLP****
|
| |
23.2
|
|
Consent
of Arent Fox LLP***
(contained in Exhibit 5.1)
|
| |
24.1
|
|
Powers
of Attorney *****
|
* Incorporated
by reference to the exhibit with the same designation filed with the Company’s
registration statement on Form S-1 (Registration No. 333-152513) filed
on July 25, 2008.
**
Incorporated by reference to the exhibit with the same designation filed with
Amendment No. 1 to the Company’s registration statement on Form S-1
(Registration No. 333-152513) filed on November 4, 2008.
***
Incorporated by reference to the exhibit with the same designation filed with
Amendment No. 2 to the Company’s registration statement on Form S-1
(Registration Statement No. 333-163906) filed on May 18, 2010.
****
Filed with Post-Effective Amendment No. 1 filed October 12, 2010.
*****
Incorporated by reference to the exhibit with the same designation filed with
the Company’s registration statement on Form S-1 (Registration Statement No.
333-163906) filed on December 22, 2009.
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 of 1933;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering price set forth in
the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement; provided, however, that paragraphs (i), (ii) and (iii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement;
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3)
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4)
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(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 of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date;
and
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the 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. Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the
Securities Act, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Post-Effective Amendment to Form S-1 on Form S-3 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in New York, New York on November 12, 2010.
|
GLOBE
SPECIALTY METALS, INC.
|
|
|
|
|
By:
|
/s/ Alan Kestenbaum
|
|
|
Alan
Kestenbaum
|
|
|
Executive
Chairman
|
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities held on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
Executive
Chairman and Director
|
|
November
12, 2010
|
|
Alan
Kestenbaum
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Executive Officer and President
|
|
November
12, 2010
|
|
Jeff
Bradley
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Financial Officer, Principal Financial Officer and
|
|
November
12, 2010
|
|
Malcolm
Appelbaum
|
|
Principal
Accounting Officer
|
|
|
|
|
|
|
|
|
|
Director
|
|
November
12, 2010
|
|
Stuart
E. Eizenstat
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
November
12, 2010
|
|
Franklin
Lavin
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
November
12, 2010
|
|
Donald
Barger
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
November
12, 2010
|
|
Thomas
Danjczek
|
|
|
|
|
* Signed
pursuant to power of attorney previously filed.
|
By:
|
/s/ Stephen Lebowitz
|
|
|
Stephen
Lebowitz
|
INDEX
TO EXHIBITS
|
Exhibit
|
|
|
|
No.
|
|
Description
|
| |
|
|
|
| |
3.1
|
|
Amended
and Restated Certificate of Incorporation*
|
| |
3.2
|
|
Certificate
of Amendment to the Amended and Restated Certificate of
Incorporation*
|
| |
3.3
|
|
Amended
and Restated Bylaws**
|
| |
5.1
|
|
Legal
opinion of Arent Fox LLP***
|
| |
23.1
|
|
Consent
of KPMG LLP****
|
| |
23.2
|
|
Consent
of Arent Fox LLP***
(contained in Exhibit 5.1)
|
| |
24.1
|
|
Powers
of Attorney *****
|
* Incorporated
by reference to the exhibit with the same designation filed with the Company’s
registration statement on Form S-1 (Registration No. 333-152513) filed
on July 25, 2008.
**
Incorporated by reference to the exhibit with the same designation filed with
Amendment No. 3 to the Company’s registration statement on Form S-1
(Registration Statement No. 333-152513) filed on July 16,
2009.
***
Incorporated by reference to the exhibit with the same designation filed with
Amendment No. 2 to the Company’s registration statement on Form S-1
(Registration Statement No. 333-163906) filed on May 18, 2010.
****
Filed with Post-Effective Amendment No. 1 filed October 12, 2010.
*****
Incorporated by reference to the exhibit with the same designation filed with
the Company’s registration statement on Form S-1 (Registration Statement No.
333-163906) filed on December 22, 2009.