Securities Registration Statement (simplified Form) (s-3/a)
May 05 2016 - 6:04AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May 4,
2016
File No. 333-210782
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
(Amendment No. 2)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ENERGY FUELS INC.
(Exact name of registrant as specified in its charter)
Ontario, Canada
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98-1067994
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(State or other jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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225 Union Blvd., Suite 600
Lakewood, Colorado
80228
(303) 974-2140
(Address, including zip
code, and telephone number, including area code, of registrants principal
executive offices)
Energy Fuels Resources (USA) Inc.
225 Union Blvd.,
Suite 600
Lakewood, Colorado 80228
(303)
974-2140
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Richard Raymer
James
Guttman
Dorsey & Whitney LLP
Brookfield Place, 161 Bay
Street, Suite 4310
Toronto, Ontario, M5J 2S1, Canada
From time to time after the effective date of this
registration statement
(Approximate date of commencement of
proposed sale to public)
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, please 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.
Large accelerated filer [ ]
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Accelerated filer [X]
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Non-accelerated filer [ ]
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Small reporting company [ ]
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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, or until this registration statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement (the
Amendment
) on Form S-3 initially filed by Energy Fuels Inc. on April
15, 2016 with the United States Securities and Exchange Commission (the
SEC
), as amended on May 2, 2016 (the
Registration Statement
),
is being filed for the purpose of updating Exhibit 5.1 to respond to comments
received from the Staff of the SEC. This Amendment does not modify any provision
of Part I of the Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14- OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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Amount
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Securities and Exchange
Commission Registration Fee
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$
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1,041
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Legal Fees and Expenses*
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55,000
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Accounting Fees and Expenses*
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10,000
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Printing and Engraving Expenses*
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4,000
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Total*
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$
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70,041
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*Except for Securities and Exchange Commission Registration
Fee, all other amounts are estimates based on expenses incurred in connection
with the filing of the shelf registration statement. Expenses in connection with
the offer and sale of securities are expected to increase depending on the
securities offered.
ITEM 15- INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Business Corporation Act (Ontario), the Registrant
may indemnify a director or officer, a former director or officer or another
individual who acts or acted at the Registrants request as a director or
officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the Registrant
or other entity on condition that (i) the individual acted honestly and in good
faith with a view to the best interests of the Registrant or, as the case may
be, to the best interests of the other entity for which the individual acted as
a director or officer or in a similar capacity at the Registrants request, and
(ii) in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, the individual had reasonable grounds for
believing that his conduct was lawful. Further, the Registrant may, with court
approval, indemnify a person described above in respect of an action by or on
behalf of the Registrant or other entity to obtain a judgment in its favor, to
which the individual is made a party because of the individuals association
with the Registrant or other entity, against all costs, charges and expenses
reasonably incurred by the individual in connection with such action if the
individual fulfills conditions (i) and (ii) above. An individual as described
above is entitled to indemnification from the Registrant as a matter of right if
the individual was not judged by a court or other competent authority to have
committed any fault or omitted to do anything the individual ought to have done,
and he fulfills conditions (i) and (ii) above.
In accordance with the Business Corporation Act (Ontario), the
by-laws of the Registrant provide that the Registrant shall indemnify a director
or officer, a former director or officer, or a person who acts or acted at the
Registrants request as a director or officer, or an individual acting in a
similar capacity, of another entity, and such persons heirs and legal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by the
individual in respect of any civil, criminal, administrative, investigative or
other proceeding in which the individual is involved because of that association
with the Registrant or other entity, provided that (i) (a) the individual acted
honestly and in good faith with a view to the best interests of the Registrant
or, as the case may be, to the best interest of the other entity for which the
individual acted as a director or officer or in a similar capacity at the
Registrants request; and (ii) in the case of a criminal or administrative
action or proceeding that is enforced by a monetary penalty, the person had
reasonable grounds for believing that the individuals conduct was lawful.
A policy of directors and officers liability insurance is
maintained by the Registrant which insures directors and officers for losses as
a result of claims against the directors and officers of the Registrant in their
capacity as directors and officers and also reimburses the Registrant for
payments made pursuant to the indemnity provisions under the by-laws of the
Registrant and the Business Corporation Act (Ontario).
Insofar as indemnification for liabilities arising under the
U.S. Securities Act, may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the U.S. Securities Act, and is therefore
unenforceable.
II - 1
ITEM 16- EXHIBITS
Other than contracts made in the ordinary course of business,
the following are the material contracts and other material exhibits as of the
date of this registration statement:
Exhibit
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Number
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Description
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2.1
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Agreement and Plan of Merger by and among
Uranerz Energy Corporation, Energy Fuels, Inc. and EFR Nevada Corp., dated
January 4, 2015 (1)
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2.2
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Amendment to the Agreement and Plan of Merger,
dated May 8, 2015 (1)
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2.3
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Membership Interest Purchase Agreement by and among
Energy Fuels Inc., Energy Fuels Holdings Corp., Mesteña LLC, Jones Ranch
Minerals Unproven, Ltd. And Mesteña Unproven Ltd. dated March 4, 2016 (2)
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3.1
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Articles of Continuance dated September 2, 2005
(3)
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3.2
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Articles of Amendment dated May 26, 2006 (4)
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3.3
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Bylaws (5)
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4.1
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The Convertible Debenture Indenture dated July
24, 2012 between Energy Fuels Inc. and BNY Trust Company of Canada
providing for the issuance of debentures (6)
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4.2
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Financing Agreement between Uranerz Energy
Corp. and Johnson County dated November 26, 2013 (7)
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4.3
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Bond Purchase Agreement among the State of
Wyoming, Johnson County and Uranerz Energy Corp. dated November 12, 2013
(8)
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4.4
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Promissory Note dated November 26, 2013 (9)
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4.5
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Mortgage and Security Agreement and Assignment
between Uranerz Energy Corp. and the Trustee dated November 26, 2013 (10)
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4.6
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Shareholder Rights Plan (11)
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4.7
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Warrant Indenture between Energy Fuels Inc. and
CST Trust Co. providing for the issue of common share purchase warrants
dated March 14, 2016 (12)
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4.8
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First Supplemental Indenture among Energy Fuels
Inc., CST Trust Company and American Stock Transfer & Trust Company,
LLC dated April 14, 2016 (13)
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4.9**
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Form of Indenture
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5.1
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Opinion of Borden Ladner Gervais LLP
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5.2**
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Opinion of Dorsey & Whitney LLP
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10.1
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Energy Fuels 2013
Amended and Restated Stock Option Plan (14)
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10.2
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Energy Fuels Omnibus Equity
Incentive Compensation Plan (15)
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10.3
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Sales Agreement between Energy
Fuels Inc. and Cantor Fitzgerald & Co. dated September 29, 2015 (16)
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10.4
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Underwriting Agreement dated
March 9, 2016 (17)
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12.1*
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Statement of Combined Fixed
Charges and Preference Dividends
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23.1**
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Consent of KPMG LLP,
Independent Registered Public Accountants
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23.2*
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Consent of Roscoe Postle
Associates Inc.
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23.3*
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Consent of William E. Roscoe
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23.4*
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Consent of Douglas T. Underhill
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23.5*
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Consent of Thomas C. Pool
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23.6*
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Consent of Barton G. Stone
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23.7*
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Consent of Robert Michaud
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23.8*
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Consent of Stuart E. Collins
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23.9*
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Consent of Mark Mathisen
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23.10*
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Consent of Harold R. Roberts
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23.11*
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Consent of David A. Ross
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23.12*
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Consent of Peters Geosciences
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23.13*
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Consent of Douglas C. Peters
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23.14*
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Consent of BRS Inc.
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23.15*
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Consent of Douglas L. Beahm
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23.16*
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Consent of W. Paul Goranson
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23.17*
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Consent of Douglass Graves
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23.18*
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Consent of Richard White
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23.19*
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Consent of Don R. Woody
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23.20*
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Consent of Terence P. McNulty
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23.21*
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Consent of Chlumsky, Armbrust
and Meyer
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II - 2
23.22*
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Consent of T.P. McNulty
& Associates Inc.
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23.23*
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Consent of Geoffrey S. Carter
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23.24*
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Consent of Broad Oak Associates
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23.25*
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Consent of Trec, Inc.
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23.26*
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Consent of Woody Enterprises
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23.27*
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Consent of Allan Moran
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23.28*
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Consent of Frank A. Daviess
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23.29*
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Consent of SRK Consulting
(U.S.) Inc.
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23.30*
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Consent of Christopher Moreton
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23.31*
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Consent of Richard L. Nielsen
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23.32 *
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Consent of Robert L. Sandefur
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23.33*
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Consent of Matthew P. Reilly
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23.34
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Consent of Borden Ladner
Gervais LLP (included in Exhibit 5.1)
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23.35**
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Consent of Dorsey & Whitney
LLP (included in Exhibit 5.2)
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24.1*
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Powers of Attorney (included on
the signature page to Energy Fuels Registration Statement on Form S-3
filed with the SEC on April 15, 2016)
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_______________________________________
*
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Previously filed as an exhibit to Energy Fuels
Registration Statement on Form S-3 filed with the SEC on April 15, 2016
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**
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Previously filed as an exhibit to Energy Fuels
Registration Statement (Amendment No. 1) on Form S-3 filed with the SEC on
May 2, 2016
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(1)
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Incorporated by reference to Schedule B of Exhibit 99.1
of Energy Fuels Form 6-K filed with the SEC on May 26, 2015.
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(2)
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Incorporated by reference to Exhibit 10.1 of Energy
Fuels Form 8-K filed with the SEC on March 8, 2016.
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(3)
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Incorporated by reference to Exhibit 3.1 of Energy Fuels
Form F-4 filed with the SEC on May 8, 2015.
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(4)
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Incorporated by reference to Exhibit 3.2 of Energy Fuels
Form F-4 filed with the SEC on May 8, 2015.
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(5)
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Incorporated by reference to Exhibit 3.3 of Energy Fuels
Form F-4 filed with the SEC on May 8, 2015.
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(6)
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Incorporated by reference to Exhibit 99.66 to Energy
Fuels registration statement on Form 40-F filed with the SEC on November
15, 2013.
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(7)
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Incorporated by reference to Exhibit 4.1 to the Form 8-K
filed on December 3, 2013 by Uranerz Energy Corporation.
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(8)
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Incorporated by reference to Exhibit 4.2 to the Form 8-K
filed on December 3, 2013 by Uranerz Energy Corporation.
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(9)
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Incorporated by reference to Exhibit 4.3 to the Form 8-K
filed on December 3, 2013 by Uranerz Energy Corporation.
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(10)
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Incorporated by reference to Exhibit 4.4 to the Form 8-K
filed on December 3, 2013 by Uranerz Energy Corporation.
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(11)
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Incorporated by reference to Exhibit 10.9 to Energy
Fuels Form F-4 filed on May 8, 2015.
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(12)
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Incorporated by reference to Exhibit 4.1 to Energy Fuels
Form 8-K filed on March 14, 2016.
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(13)
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Incorporated by reference to Exhibit 4.1 to Energy Fuels
Form 8-K filed on April 20, 2016.
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(14)
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Incorporated by reference from Schedule B of Exhibit
99.84 of Energy Fuels registration statement on Form 40-F filed with the
SEC on November 15, 2013.
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(15)
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Incorporated by reference to Exhibit 4.1 to Energy Fuels
Form S-8 filed on June 24, 2015.
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(16)
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Incorporated by reference to Exhibit 99.1 to Energy
Fuels Form 6-K filed on September 29, 2015.
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(17)
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Incorporated by reference to Exhibit 10.1 to Energy
Fuels Form 8-K filed March 10, 2016.
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ITEM 17 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 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;
(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 the undertakings set forth in
paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the registration
statement is on Form S-3 or Form F-3 and the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statements or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
II - 3
(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:
(i) 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
(ii) 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 the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document 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.
(5) That, for the purpose of
determining liability of the registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser: (i) any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the undersigned
registrant; (iii) the portion of any other free writing prospectus relating to
the offering containing material information about the undersigned registrant or
its securities provided by or on behalf of the undersigned registrant; and (iv)
any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) That, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Exchange Act) 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.
(7) 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 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 of 1933 and will be governed by the
final adjudication of such issue.
(8) To file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939, as amended in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act of 1939, as amended.
II - 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned thereunto duly authorized. The registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3.
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ENERGY FUELS INC.
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May 4, 2016
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By:
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/s/
Stephen P. Antony
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Stephen P. Antony
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Chief Executive Officer and President and
Director
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(Principal Executive
Officer)
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May 4, 2016
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By:
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/s/
Daniel G. Zang
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Daniel G. Zang
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Chief Financial Officer
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(Principal Financial and Accounting Officer)
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Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons on behalf
of the Registrant in the capacities and on the date indicated:
Name
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Title
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Date
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Chief Executive Officer and
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/s/
Stephen P. Antony
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President and Director (Principal
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May 4, 2016
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Stephen P. Antony
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Executive Officer)
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/s/
Daniel G. Zang
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Chief Financial Officer (Principal
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Daniel G. Zang
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Financial and Accounting Officer)
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May 4, 2016
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/s/*
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J. Birks Bovaird
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Chairman and Director
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May 4, 2016
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/s/
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Hyung Mun Bae
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Director
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May 4, 2016
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/s/
*
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Ames Brown
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Director
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May 4, 2016
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/s/
*
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Paul A. Carroll
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Director
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May 4, 2016
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/s/
*
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Glenn J. Catchpole
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Director
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May 4, 2016
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/s/
*
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Bruce D. Hansen
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Director
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May 4, 2016
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/s/
*
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Dennis L. Higgs
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Director
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May 4, 2016
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/s/
*
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Ron F. Hochstein
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Director
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May 4, 2016
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*
/s/ Daniel G. Zang
|
|
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By Daniel G. Zang as Attorney-in-Fact
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May 4, 2016
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II - 5
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