As filed with the Securities and Exchange Commission on March 25, 2024

 

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 No.)

 

595 Howe Street, 10th Floor

Vancouver, British Columbia

V6C 2T5

(574) 252-9333

(Address, Including Zip Code, of Principal Executive Offices)

 

TMC the metals company Inc. 2021 Employee Stock Purchase 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 statements filed on Form S-8 (SEC File Nos. 333-265318 and 333-270876) of TMC the metals company Inc. (the “Registrant”) are effective. The additional securities are 3,065,587 additional Common Shares of the Registrant reserved for issuance under the 2021 Employee Stock Purchase Plan as a result of the automatic increase in the number of shares reserved under this plan on January 1, 2024. The information contained in the Registrant’s registration statements on Form S-8 (SEC File Nos. 333-265318 and 333-270876) 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.

 

Exhibit Number		Exhibit Description		Filed Herewith		Incorporated by Reference herein from Form or Schedule		Filing Date		SEC File/ Reg. Number
4.1		Notice of Articles of TMC the metals company Inc.				Form 8-K (Exhibit 3.1)		9/15/2021		001-39281
4.2		Articles of TMC the metals company Inc.				Form 8-K (Exhibit 3.2)		9/15/2021		001-39281
4.3		TMC the metals company Inc. Common Share Certificate				Form 8-K (Exhibit 4.1)		9/15/2021		001-39281
5.1		Opinion of Fasken Martineau DuMoulin LLP		X
23.1		Consent of Ernst & Young LLP independent registered public accounting firm of TMC the metals company Inc.		X
23.2		Consent of Fasken Martineau DuMoulin LLP (included in Exhibit 5.1)		X
24.1		Power of Attorney (included on the signature page hereof)		X
99.1+		TMC the metals company Inc. 2021 Employee Stock Purchase Plan				Form S-8 (Exhibit 99.1)		5/31/2022		333-265318
107		Filing Fee Table		X

 

+ 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 March 25, 2024.

 

	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		March 25, 2024
Gerard Barron		(Principal Executive Officer)
/s/ Craig Shesky		Chief Financial Officer		March 25, 2024
Craig Shesky		(Principal Financial and Accounting Officer)
/s/ Andrew C. Greig		Director		March 25, 2024
Andrew C. Greig
/s/ Andrew Hall		Director		March 25, 2024
Andrew Hall
/s/ Andrei Karkar		Director		March 25, 2024
Andrei Karkar
/s/ Sheila Khama		Director		March 25, 2024
Sheila Khama
/s/ Christian Madsbjerg		Director		March 25, 2024
Christian Madsbjerg
/s/ Kathleen McAllister		Director		March 25, 2024
Kathleen McAllister
/s/ Amelia Kinahoi Siamomua		Director		March 25, 2024
Amelia Kinahoi Siamomua

 

 

 

Exhibit 5.1

 

 

 

March 25, 2024 File No.: 328015.00001
TMC the metals company Inc. 595 Howe Street, 10th Floor 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 additional aggregate of 3,065,587 common shares without par value in the capital of the Corporation (the “2024 ESPP Shares”) issuable upon exercise of the option awards (the “2024 ESPP Options”) outstanding under and in accordance with the terms of the 2021 Employee Stock Purchase Plan of the Corporation (the “ESPP”).

 

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 ESPP; and

 

2.

the Registration Statement.

 

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 March 25, 2024 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 issuance of the 2024 ESPP 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, or excerpts thereof, made available to us are the original minute books and records, or excerpts thereof, 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 applicable proceedings of the shareholders and directors;

 

5.

each of the ESPP and the 2024 ESPP Options 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.

 

 

 

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 2024 ESPP Shares when issued in accordance with the terms of the ESPP 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,

 

/s/ Fasken Martineau DuMoulin LLP

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the 2021 Employee Stock Purchase Plan of our report dated March 25, 2024 with respect to the consolidated financial statements of TMC the metals company Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

Chartered Professional Accountants

Vancouver, Canada

March 25, 2024

 

 

 

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 Maximum Offering Price Per Unit				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
Equity		Common Shares without par value		457(c) and 457(h)			3,065,587	(2)		$	1.63	(3)		$	4,996,906.81			$	0.00014760			$	737.54
Total Offering Amounts														$	4,996,906.81							$	737.54
Total Fee Offsets																							—
Net Fee Due																						$	737.54

 

	(1)	Represents common shares, without par value (“Common Shares”) that may be issued under the TMC the metals company Inc. 2021 Employee Stock Purchase 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.
	(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, 2024.
	(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 March 22, 2024.