TMC the metals company Inc.
TMC the metals company Inc.
11/19/2021 | Press release | Distributed by Public on 11/19/2021 12:36
Initial Registration Statement for Employee Benefit Plan (Form S-8)
As filed with the Securities and Exchange Commission on November 19, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TMC the metals company Inc.
(Exact name of registrant as specified in its charter)
| British Columbia, Canada | Not Applicable | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
595 Howe Street, 10th Floor
Vancouver, British Columbia
V6C 2T5
Telephone: (574) 252-9333
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
2021 Incentive Equity Plan
Stock Option Plan
(Full Title of the Plans)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, New York 10168
Telephone: (800) 221-0102
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | x | Smaller reporting company | x | |||
| Emerging growth company | x |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
|
Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||||
| Common Shares without par value | 64,866,839(2) | (3) | $163,825,863.37(3) | $15,186.66 | ||||
| Class A Special Shares allocated to Rollover Options | 551,714 | - | - | - (4) | ||||
| Class B Special Shares allocated to Rollover Options | 1,103,454 | - | - | - (4) | ||||
| Class C Special Shares allocated to Rollover Options | 1,103,454 | - | - | - (4) | ||||
| Class D Special Shares allocated to Rollover Options | 2,206,933 | - | - | - (4) | ||||
| Class E Special Shares allocated to Rollover Options | 2,206,933 | - | - | - (4) | ||||
| Class F Special Shares allocated to Rollover Options | 2,206,933 | - | - | - (4) | ||||
| Class G Special Shares allocated to Rollover Options | 2,758,681 | - | - | - (4) | ||||
| Class H Special Shares allocated to Rollover Options | 2,758,681 | - | - | - (4) |
| (1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), the registrant is also registering an indeterminate number of additional Common Shares (as defined below) and Special Shares (as defined below) that may become issuable as a result of any stock dividend, stock split, recapitalization or other similar transaction. |
| (2) |
Consists of (i) 24,682,386 Common Shares, without par value, of the Registrant (the "Common Shares") reserved for issuance under the Registrant's 2021 Incentive Equity Plan (the "2021 Plan"), (ii) 25,287,670 Common Shares underlying option awards outstanding (the "Rollover Options") under the DeepGreen Metals Inc. Stock Option Plan, as amended (the "Stock Option Plan," and together with the 2021 Plan, the "Plans"), and (iii) 14,896,783 Common Shares that may be issued upon conversion of the Class A Special Shares, Class B Special Shares, Class C Special Shares, Class D Special Shares, Class E Special Shares, Class F Special Shares, Class G Special Shares and Class H Special Shares (together, the "Special Shares"). |
| (3) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price for shares reserved for future issuance under the Plans are based on (i) in the case of Common Shares which may be purchased upon exercise of outstanding options, the fee is calculated on the basis of the price at which the options may be exercised; and (ii) in the case of Special Shares and Common Shares not yet issued and Common Shares subject to stock-based awards or for which awards have not yet been granted, the average of the high and the low price of Registrant's Common Shares as reported on The Nasdaq Stock Market on November 16, 2021. The chart below details the calculations of the registration fee: |
| Securities | Number of Common Shares | Offering Price Per Share | Aggregate Offering Price |
| Shares reserved for future issuance under the 2021 Plan | 24,682,386 | $3.43(3)(ii) | $84,660,583.98 |
| Shares underlying option awards outstanding under the Stock Option Plan | 25,287,670 | $1.11(3)(i) | $28,069,313.70 |
| Shares issuable upon conversion of the Special Shares | 14,896,783 | $3.43(3)(ii) | $51,095,965.69 |
| Proposed Maximum Aggregate Offering Price | $163,825,863.37 | ||
| Registration Fee | $15,186.66 |
| (4) | In accordance with Rule 457(i), the entire registration fee for the Special Shares is allocated to the Common Shares underlying such Special Shares, and no separate fee is payable for the Special Shares. |
EXPLANATORY NOTE
On September 9, 2021, TMC the metals company Inc., formerly known as Sustainable Opportunities Acquisition Corp. (the "Registrant," "we," "us" or "our"), completed its business combination with what was then known as DeepGreen Metals Inc. ("DeepGreen") in accordance with the terms of the Business Combination Agreement, dated as of March 4, 2021 (the "Business Combination Agreement"), by and among the Registrant, 1291924 B.C. Unlimited Liability Company, an unlimited liability company existing under the laws of British Columbia, Canada ("NewCo Sub"), and DeepGreen, pursuant to which NewCo Sub merged with and into DeepGreen, with DeepGreen surviving as a wholly-owned subsidiary of the Registrant (the "Merger"). In connection with the Merger, the Registrant changed its name to "TMC the metals company Inc."
Pursuant to the Business Combination Agreement, (i) the Registrant assumed the Stock Option Plan, as amended and each option to purchase DeepGreen common shares, whether vested or unvested, that was outstanding immediately prior to the Effective Time was assumed by the Registrant and became a Rollover Option (vested or unvested, as applicable) to purchase a number of TMC Common Shares; (ii) the holders of the Rollover Options became entitled to receive Special Shares, each of which Special Share is automatically convertible into TMC Common Shares on a one-for-one basis (subject to adjustment) if certain TMC Common Share price thresholds are met (collectively, the "DeepGreen Earnout Shares"). This Registration Statement on Form S-8 is being filed for the purpose of registering the Registrant's Common Shares issuable pursuant to the Rollover Options and the DeepGreen Earnout Shares. In addition, in connection with the Merger, on September 3, 2021, the stockholders of the Registrant approved the 2021 Plan, and this Registration Statement on Form S-8 is also being filed for the purpose of registering the Registrant's Common Shares issuable under the 2021 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the "Commission"), the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Common Shares pursuant to the Plans. The documents containing the information specified in Part I will be delivered to the participants in the Plans covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by the registrant with the Commission are incorporated herein by reference:
| (a) | The prospectus filed by the Registrant with the Commission pursuant to Rule 424(b) under the Securities Act, on October 22, 2021, relating to the Registration Statement on Form S-1 (File No. 333-260126) (excluding Items I and II in the "Index to Financial Statements" on page F-1 thereof and the audited and unaudited financial statements of Sustainable Opportunities Acquisition Corp. set forth on pages F-2 to F-43 thereof, which are not incorporated herein by reference); |
| (b) | The Registrant's Quarterly Reports on Form 10-Q for the quarter ended March 31, 2021, filed with the Commission on May 24, 2021, for the quarter ended June 30, 2021, filed with the Commission on August 16, 2021, and for the quarter ended September 30, 2021, filed with the Commission on November 15, 2021; |
| (c) | The Registrant's Current Reports on Form 8-K or 8-K/A as filed with the Commission on March 4, 2021, May 24, 2021, August 26, 2021, August 27, 2021, September 7, 2021, September 15, 2021 and September 15, 2021; and |
| (d) | The description of the Registrant's securities contained in the Registrant's registration statement on Form 8-A/A (File No. 001-39281), filed by the Registrant with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on September 10, 2021, including any amendments or reports filed for the purpose of updating such description. |
All reports and other documents filed by the registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
At the date hereof, Fasken Martineau DuMoulin LLP and the partners and associates of Fasken Martineau DuMoulin LLP, as a group beneficially own, directly or indirectly, less than one per cent of any outstanding securities of the Company.
| Item 6. | Indemnification of Directors and Officers. |
Under the Business Corporations Act (British Columbia) (the "BCBCA"), a company may indemnify: (i) a current or former director or officer of that company; (ii) a current or former director or officer of another company if, at the time such individual held such office, such company was an affiliate of the company, or if such individual held such office at the company's request; or (iii) an individual who, at the request of the company, held, or holds, an equivalent position in another entity (an "indemnifiable person") against all judgments, penalties or fines, or amounts paid to settle a proceeding in which he or she is involved because of that person's position as an indemnifiable person (an "eligible proceeding") and the expenses actually and reasonably incurred in respect of an eligible proceeding, unless: (i) the individual did not act honestly and in good faith with a view to the best interests of such company or the other entity, as the case may be; or (ii) in the case of an eligible proceeding other than a civil proceeding, the individual did not have reasonable grounds for believing that the individual's conduct in respect of which the proceeding was brought was lawful. A company cannot indemnify an indemnifiable person if it is prohibited from doing so under its articles. Subject to being prohibited to indemnify an indemnifiable prson, a company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an indemnifiable person in respect of that proceeding if the indemnifiable person has not been reimbursed for those expenses and is wholly successful, on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome of the proceeding. Under the BCBCA, a company may also pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred if the company received from the indemnifiable person a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited.
Subject to the BCBCA, the Company's Articles require the Company to indemnify a director or former director and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be liable, and the Company must after final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director is deemed to have contracted with us on the terms of the indemnity contained in our Articles. In addition, our Articles specify that failure of a director or former director to comply with the provisions of the BCBCA or our Articles will not invalidate any indemnity to which he or she is entitled. Our Articles also allow for us to purchase and maintain insurance for the benefit of specified eligible parties.
We have entered into indemnity agreements with each of our directors and certain officers which provide for indemnification and advancements by the Company of certain expenses and costs relating to claims, suits or proceedings arising from each director's and officer's service to the Company, or, at the Company's request, service to other entities, as officers or directors to the maximum extent permitted by applicable law and subject to the terms and conditions of such indemnity agreement.
We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
| 99.5+ | Amendment to DeepGreen Metals Inc. Stock Option Plan | Form S-4/A (Exhibit 10.21) | 5/27/2021 | 333-255118 |
+ Denotes management contract or compensatory plan or arrangement
| Item 9. | Undertakings. |
The undersigned registrant hereby undertakes:
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8 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 Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for 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 Exchange Act that is incorporated by reference in this 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 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Signatures
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized in New York, New York on November 19, 2021.
| TMC THE METALS COMPANY INC. | ||
| By: | /s/ Craig Shesky | |
| Craig Shesky | ||
| Chief Financial Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of Gerard Barron and Craig Shesky, acting alone or together with another attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this registration statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act (and all further amendments, including post-effective amendments, thereto)), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dated indicated.
| Signature | Title | Date | ||
| /s/ Gerard Barron |
Chief Executive Officer and Chairman (Principal Executive Officer) |
November 19, 2021 | ||
| Gerard Barron | ||||
| /s/ Craig Shesky |
Chief Financial Officer (Principal Financial and Accounting Officer) |
November 19, 2021 | ||
| Craig Shesky | ||||
| /s/ Gina Stryker | Chairman | November 19, 2021 | ||
| Gina Stryker | ||||
| /s/ Christian Madsbjerg | Director | November 19, 2021 | ||
| Christian Madsbjerg | ||||
| /s/ Andrew Hall | Director | November 19, 2021 | ||
| Andrew Hall | ||||
| /s/ Scott Leonard | Director | November 19, 2021 | ||
| Scott Leonard | ||||
| /s/ Sheila Khama | Director | November 19, 2021 | ||
| Sheila Khama | ||||
| /s/ Andrei Karkar | Director | November 19, 2021 | ||
| Andrei Karkar | ||||
| /s/ Amelia Kinahoi Siamomua | Director | November 19, 2021 | ||
| Amelia Kinahoi Siamomua |