As filed with the Securities and Exchange Commission on May 31, 2022
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)
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British Columbia, Canada |
Not Applicable | |
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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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595 Howe Street, 10th Floor
Vancouver, British Columbia
V6C 2T5
(574) 252-9333
(Address, Including Zip Code, of Principal Executive Offices)
2021 Incentive Equity 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)
Copies to:
Michael L. Fantozzi, Esq.
Daniel T. Kajunski, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Telephone: (617) 542-6000
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. ¨
EXPLANATORY NOTE
This Registration Statement registers additional securities of the same class as other securities for which the registration statement filed on Form S-8 (SEC File No. 333-261221) of the Registrant is effective. The information contained in the Registrant’s registration statement on Form S-8 (SEC File No. 333-261221) is hereby incorporated by reference pursuant to General Instruction E of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 8. | Exhibits. |
+ Denotes management contract or compensatory plan or arrangement
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 May 31, 2022.
| TMC THE METALS COMPANY INC. | ||
| By: | /s/ Craig Shesky | |
| Craig Shesky | ||
| Chief Financial Officer | ||
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) |
May 31, 2022 | ||
| Gerard Barron | ||||
| /s/ Craig Shesky | Chief Financial Officer (Principal Financial and Accounting Officer) |
May 31, 2022 | ||
| Craig Shesky | ||||
| /s/ Gina Stryker | Director | May 31, 2022 | ||
| Gina Stryker | ||||
| /s/ Christian Madsbjerg | Director | May 31, 2022 | ||
| Christian Madsbjerg | ||||
| /s/ Andrew Hall | Director | May 31, 2022 | ||
| Andrew Hall | ||||
| /s/ Kathleen McAllister | Director | May 31, 2022 | ||
| Kathleen McAllister | ||||
| /s/ Sheila Khama | Director | May 31, 2022 | ||
| Sheila Khama | ||||
| /s/ Andrei Karkar | Director | May 31, 2022 | ||
| Andrei Karkar | ||||
| /s/ Amelia Kinahoi Siamomua | Director | May 31, 2022 | ||
| Amelia Kinahoi Siamomua |
Exhibit 5.1
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May 31, 2022 File No.: 328015.00001 |
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TMC the metals company Inc. Vancouver, British Columbia V6C 2T5 |
Dear Sirs/Mesdames:
| Re: | TMC the metals company Inc. – Registration Statement on Form S-8 |
We have acted as Canadian counsel to TMC the metals company Inc., a corporation continued under the laws of the Province of British Columbia (the “Corporation”), in connection with the filing of a registration statement on Form S-8 (as may be amended, the “Registration Statement”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to registering the issuance of an aggregate of 9,017,299 common shares without par value in the capital of the Corporation (the “2021 Plan Shares”) issuable upon exercise of the awards (the “2021 Plan Awards”) outstanding under and in accordance with the terms of the 2021 Incentive Equity Plan of the Corporation (the “2021 Plan”).
| A. | Documents Reviewed and Reliance |
As Canadian counsel to the Corporation, we have examined original executed or electronically delivered copies, which have been certified or otherwise identified to our satisfaction, of:
| 1. | the Registration Statement; and |
| 2. | the 2021 Plan. |
We have also made such investigations and examined originals or copies, certified or otherwise identified to our satisfaction, of such certificates of public officials and of such other certificates, documents and records as we considered necessary or relevant for purposes of the opinions expressed below, including:
| 1. | a certificate of good standing dated May 31, 2022 issued pursuant to the Business Corporations Act (British Columbia) relating to the Corporation; and |
| 2. | a certificate signed by the Chief Financial Officer of the Corporation dated as of the date hereof addressed to our firm, containing certain additional corporate information of a factual nature and attaching the constating documents of the Corporation, including the certificate of continuation, notice of articles and articles of the Corporation (the “Constating Documents”), and the resolutions of the directors of the Corporation authorizing and approving the 2021 Plan, and the issuance of the 2021 Plan Shares (the “Officer’s Certificate”). |
As to various questions of fact material to the opinions provided herein, we have relied upon the Officer’s Certificate.
| B. | Laws Addressed |
We are qualified to practice law in the Province of British Columbia and our opinion herein is restricted to the laws of the Province of British Columbia and the federal laws of Canada applicable therein. We assume no obligation to update these opinions to take into account any changes in such laws or facts after the date hereof.
| C. | Assumptions |
For the purposes of the opinions expressed herein, we have assumed, without independent investigation, the following:
| 1. | with respect to all documents examined by us, the genuineness of all signatures, the authenticity, completeness and accuracy of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as certified, conformed, telecopied, PDF or photocopied copies of originals and the legal capacity of individuals signing any documents; |
| 2. | the completeness, accuracy and currency of the indices and filing systems maintained at the public offices where we have searched or made relevant inquiries and of other documents and certificates supplied by public officials; |
| 3. | that the Officer’s Certificate continues to be accurate on the date hereof; |
| 4. | that the minute books and corporate records of the Corporation made available to us are the original minute books and records of the Corporation and contain all of the articles and constating documents of the Corporation and any amendments thereto and all of the respective minutes, or copies thereof, of all proceedings of the shareholders and directors; |
| 5. | each of the 2021 Plan and the 2021 Plan Awards constitutes a legal, valid and binding obligation of the Corporation and the other parties thereto, enforceable against each of the parties thereto in accordance with its terms and the execution and delivery thereof was duly authorized by the parties thereto; and |
| 6. | that if any obligation under any document is required to be performed in a jurisdiction outside of the Province of British Columbia, the performance of that obligation will not be illegal under the laws of that jurisdiction. |
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| D. | Reliance |
For the purposes of expressing the opinions set forth herein, in connection with certain factual matters pertaining to this opinion, we have relied exclusively and without independent investigation upon the Officer’s Certificate.
| E. | Opinions |
Based upon and relying on the foregoing and the qualifications hereinafter expressed, we are of the opinion that the 2021 Plan Shares, when issued in accordance with the terms of the 2021 Plan, will be validly issued, fully paid and non-assessable common shares in the capital of the Corporation.
| F. | Qualifications |
Whenever our opinion refers to securities of the Corporation, whether issued or to be issued, as being “fully-paid and non-assessable”, such phrase means that the holders of such securities will not, after the issuance to them of such securities, be liable to pay further amounts to the Corporation in respect of the issue price payable for such securities, and no opinion is expressed as to the adequacy of any consideration received by the Corporation therefor or as to the actual receipt by the Corporation of any consideration for the issuance of such securities.
For greater certainty, a specific assumption, limitation or qualification in this opinion is not to be interpreted to restrict the generality of any other assumption, limitation or qualification expressed in general terms in this opinion that includes the subject matter of the specific assumption, limitation or qualification.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 or Section 11 of the Act or the rules and regulations of the Commission promulgated thereunder.
The opinions herein are given as at the date hereof and we disclaim any obligation or undertaking to advise any person of any change in law or fact that may come to our attention after the date hereof. Our opinions do not take into account any proposed rules, policies or legislative changes that may come into force following the date hereof.
Yours truly,
Fasken Martineau DuMoulin LLP
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2021 Incentive Equity Plan of TMC the metals company Inc. of our report dated March 25, 2022, with respect to the consolidated financial statements of TMC the metals company Inc. (the “Company”) as at and for the years ended December 31, 2021 and December 31, 2020.
/s/ Ernst & Young LLP
Chartered Professional Accountants
Vancouver, Canada
May 31, 2022
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
TMC the metal company Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered (1) | Proposed Offering | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | |||||||||||||||||
| Equity | Common shares without par value | 457(c) and 457(h) | 9,017,299 | (2) | $ | 1.38 | (3) | $ | 12,443,872.62 | $ | 0.0000927 | $ | 1,153.55 | |||||||||||
| Total Offering Amounts | $ | 12,443,872.62 | $ | 1,153.55 | ||||||||||||||||||||
| Total Fee Offsets | — | |||||||||||||||||||||||
| Net Fee Due | $ | 1,153.55 | ||||||||||||||||||||||
| (1) |
Represents common shares, without par value (“Common Shares”) that may be issued under the TMC the metals company Inc. 2021 Incentive Equity Plan (the “Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional Common Shares that become issuable under the Plan as a result of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number of outstanding Common Shares.
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| (2) |
Represents the number of additional Common Shares reserved for issuance under the Plan as a result of the automatic increase in the number of shares reserved under the Plan on January 1, 2022.
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| (3) |
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) promulgated under the Securities Act on the basis of the average of the high and the low price of Registrant’s Common Shares as reported on the Nasdaq Stock Market LLC on May 23, 2022. |