Securities Registration: Employee Benefit Plan (s-8)
June 13 2017 - 5:20PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933
B2GOLD CORP.
(Exact
name of registrant as specified in its charter)
|
British Columbia, Canada
|
n/a
|
|
(State or other jurisdiction of incorporation or
|
(I.R.S. Employer Identification
No.)
|
|
organization)
|
|
Suite 3100, Three Bentall Centre
595 Burrard
Street
Vancouver, British Columbia
Canada V7X 1J1
(604) 681-8371
(Address of Principal Executive
Offices)
Incentive Stock Option Plan (Amended and
Restated)
(Full titles of the plans)
DL Services, Inc.
701 Fifth Avenue, Suite 6100
Seattle, Washington 98104
(Name and address of
agent for service)
(206) 903-8800
(Telephone number, including
area code, of agent for service)
With a copy to
Christopher L. Doerksen
Dorsey
& Whitney LLP
701 Fifth Avenue, Suite 6100
Seattle, WA
98104
(206) 903-8800
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.
|
Large accelerated filer [X]
|
Accelerated
filer
[ ]
|
|
Non-accelerated filer [ ] (Do not
check if a smaller reporting company)
|
Smaller reporting company [
]
|
|
Emerging growth company [ ]
|
|
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 Each Class of
Securities
to be Registered
|
Amount to
be
Registered
(1)
|
Proposed Maximum Offering
Price Per
Share
(2)
|
Proposed Maximum
Aggregate Offering
Price
|
Amount of
Registration
Fee
|
|
Common shares, no par value
(3)
|
18,985,480
|
$2.74
|
$52,020,215
|
$6,030
|
|
Common shares, no par value
(4)
|
21,705,842
|
$2.73
|
$59,217,097
|
$6,864
|
|
Total
|
40,691,322
|
|
$111,237,312
|
$12,894
|
|
(1)
|
Pursuant to Rule 416(a) of the Securities Act of 1933, as
amended, this registration statement also covers any additional securities
that may be offered or issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions in accordance with the
provisions of the plans.
|
|
(2)
|
Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h)(1) and 457(c). The
proposed maximum aggregate offering price is based upon the average of the
high and low prices of the common shares reported on the NYSE MKT LLC on
June 9, 2017 for common shares reserved for future option issuances under
the Incentive Stock Option Plan (Amended and Restated) (the “Option
Plan”).
|
|
(3)
|
Represents common shares, without par value, issuable
pursuant to the Option Plan. Under the terms of the Option Plan, the
Registrant may issue up to 8.5% of its issued and outstanding shares under
the Option Plan and all of the Registrant’s other previously issued and
outstanding security-based compensation arrangements, including the
Restricted Share Unit Plan (Amended) (the “RSU Plan”), under which the
Registrant may issue up to 15,000,000 common shares. Accordingly, any
shares issued pursuant to the RSU Plan will reduce the number of shares
issuable pursuant to the Option Plan. Certain shares issuable under the
Option Plan (and the RSU Plan) were previously registered on Form S-8
(File Nos. 333-192555, 333-200228 and 333-206811). This Registration
Statement on Form S-8 registers up to 40,691,322 additional common shares
which may be issued pursuant to the Option
Plan.
|
|
(4)
|
Represents common shares, without par value, issuable pursuant to 21,705,842 outstanding options granted under the Option Plan, each exercisable at a price of Cdn$3.66 per share. The amounts have been converted to U.S. dollars for purposes of this registration fee table based on the daily exchange rate reported by the Bank of Canada on June 12, 2017, which was Cdn$1.00 to $0.7454.
|
EXPLANATORY NOTE
This registration statement on Form S-8 registers the offer and
sale of common shares of B2Gold Corp. (the “Registrant”) pursuant to the
exercise of options under the B2Gold Corp. Incentive Stock Option Plan (Amended
and Restated).
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the
Securities and Exchange Commission (the “Commission”) are hereby incorporated in
this registration statement by reference:
|
|
(a)
|
The Annual Report on Form 40-F for the year ended
December 31, 2016, filed with the Commission on March 31, 2017;
|
|
|
|
|
|
|
(b)
|
All other reports filed by the Registrant under Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) since December 31, 2016; and
|
|
|
|
|
|
|
(c)
|
The description of the Registrant’s securities contained
in the Registrant’s registration statement on Form 40-F filed under the
Exchange Act on May 20, 2013.
|
All documents filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to
the filing of a post-effective amendment that indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such 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.
Certain experts named in this registration statement, including
Tom Garagan, William Lytle, Peter Montano, John Rajala, Kevin Pemberton and Ken
Jones, are employees of the Registrant. Such experts and any other experts named
in this registration statement serving as officers, directors or employees, may
own common shares of the Registrant and may participate in the Registrant’s
Incentive Stock Option Plan (Amended and Restated) and/or the Registrant’s
Restricted Share Unit Plan (Amended) pursuant to the terms of such plans.
Item 6. Indemnification of Directors and Officers.
Business
Corporations Act
The
Business Corporations Act
(British Columbia)
(“BCBCA”) provides that a company may:
|
|
•
|
indemnify an eligible party against all judgments,
penalties or fines awarded or imposed in, or amounts paid in settlement
of, an eligible proceeding, to which the eligible party is or may be
liable; and
|
|
|
|
|
|
|
•
|
after the final disposition of an eligible proceeding,
pay the “expenses” (which includes costs, charges and expenses (including
legal and other fees) but excludes judgments, penalties, fines or amounts
paid in settlement of a proceeding) actually
and reasonably incurred by an eligible party in respect of that proceeding.
|
2
However, after the final disposition of an eligible proceeding,
a company must pay expenses actually and reasonably incurred by an eligible
party in respect of that proceeding if the eligible party (i) has not been
reimbursed for those expenses, and (ii) is wholly successful, on the merits or
otherwise, or is substantially successful on the merits, in the outcome of the
proceeding. The BCBCA also provides that a company may pay the expenses as they
are incurred in advance of the final disposition of an eligible proceeding if
the company first receives from the eligible party a written undertaking that,
if it is ultimately determined that the payment of expenses is prohibited under
the BCBCA, the eligible party will repay the amounts advanced.
For the purpose of the BCBCA, an “eligible party,” in relation
to a company, means an individual who:
|
|
•
|
is or was a director or officer
of the company;
|
|
|
|
|
|
|
•
|
is or was a director or officer
of another corporation
|
|
|
o
|
at a time when the corporation is
or was an affiliate of the company, or
|
|
|
o
|
at the request of the company; or
|
|
|
•
|
at the request of the company, is
or was, or holds or held a position equivalent to that of, a director or
officer of a partnership, trust, joint venture or other unincorporated
entity;
|
and includes, with some exceptions, the heirs and personal or
other legal representatives of that individual.
An “eligible proceeding” under the BCBCA is a proceeding in
which an eligible party or any of the heirs and personal or other legal
representatives of the eligible party, by reason of the eligible party being or
having been a director or officer of, or holding or having held a position
equivalent to that of a director or officer of, the company or an associated
corporation (i) is or may be joined as a party, or (ii) is or may be liable for
or in respect of a judgment, penalty or fine in, or expenses related to, the
proceeding. A “proceeding” includes any legal proceeding or investigative
action, whether current, threatened, pending or completed.
Notwithstanding the foregoing, the BCBCA prohibits indemnifying
an eligible party or paying the expenses of an eligible party if any of the
following conditions apply:
|
|
•
|
if the indemnity or payment is made under an earlier
agreement to indemnify or pay expenses and, at the time that such
agreement was made, the company was prohibited from giving the indemnity
or paying the expenses by its memorandum or articles;
|
|
|
|
|
|
|
•
|
if the indemnity or payment is made otherwise than under
an earlier agreement to indemnify or pay expenses and, at the time that
the indemnity or payment is made, the company is prohibited from giving
the indemnity or paying the expenses by its memorandum or articles;
|
|
|
|
|
|
|
•
|
if, in relation to the subject matter of the eligible
proceeding, the eligible party did not act honestly and in good faith with
a view to the best interests of the company or the associated corporation,
or as the case may be; or
|
|
|
|
|
|
|
•
|
in the case of an eligible proceeding other than a civil
proceeding, if the eligible party did not have reasonable grounds for
believing that the eligible party’s conduct in respect of which the
proceeding was brought was lawful.
|
Additionally, if an eligible proceeding is brought against an
eligible party by or on behalf of the company or by or on behalf of an
associated corporation, the company must not (i) indemnify the eligible party in
respect of the proceeding; or (ii) pay the expenses of the eligible party in
respect of the proceeding.
3
Whether or not payment of expenses or indemnification has been
sought, authorized or declined under the BCBCA, on the application of a company
or an eligible party, the Supreme Court of British Columbia may do one or more
of the following:
-
order a company to indemnify an eligible party against any liability
incurred by the eligible party in respect of an eligible proceeding;
-
order a company to pay some or all of the expenses incurred by an eligible
party in respect of an eligible proceeding;
-
order the enforcement of, or any payment under, an agreement of
indemnification entered into by a company;
-
order a company to pay some or all of the expenses actually and reasonably
incurred by any person in obtaining an order; or
-
make any other order the court considers appropriate.
The BCBCA provides that a company may purchase and maintain
insurance for the benefit of an eligible party or the heirs and personal or
other legal representatives of the eligible party against any liability that may
be incurred by reason of the eligible party being or having been a director or
officer of, or holding or having held a position equivalent to that of a
director or officer of, the company or an associated corporation.
Articles of the Registrant
The Registrant’s articles provide that, subject to the BCBCA,
the Registrant must indemnify a director, former director or alternate director
and his or her heirs and legal personal representatives against all eligible
penalties to which such person is or may be liable and must, after the final
disposition of an eligible proceeding (as defined in the Registrant’s articles),
pay the expenses actually and reasonably incurred by such person in respect of
that proceeding. Pursuant to the Registrant’s articles, each director and
alternate director is deemed to have contracted with the Registrant on the
aforementioned terms.
The Registrant’s articles further provide that the Registrant
may indemnify any person, subject to any restrictions in the BCBCA, and that the
failure of a director, alternate director or officer of the Registrant to comply
with the BCBCA or the Registrant’s articles does not invalidate any indemnity to
which he or she is entitled under the Registrant’s articles.
The Registrant is authorized by its articles to purchase and
maintain insurance for the benefit of certain eligible persons, as set out in
the articles.
The Registrant maintains directors’ and officers’ liability
insurance coverage through a policy covering the Registrant and its
subsidiaries, which has an annual aggregate policy limit of USD$100 million,
subject to a corporate deductible of USD$500,000 per loss for all claims
pursuant to Canadian securities laws and USD$1,000,000 per loss for all claims
pursuant to U.S. securities laws or relating to mergers and acquisitions. This
insurance provides coverage for indemnity payments made by the Registrant to its
directors, alternate directors and officers as required or permitted by law for
losses, including legal costs, incurred by officers, directors and alternate
directors in their capacity as such. This policy also provides coverage directly
to individual directors, alternate directors and officers if they are not
indemnified by the Registrant. The insurance coverage for directors, alternate
directors and officers has customary exclusions, including certain acts of libel
and slander, and those acts determined to be uninsurable under law, or
deliberately fraudulent or dishonest or to have resulted in personal profit or
advantage.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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 Securities Act of
1933, as amended, and is therefore unenforceable.
4
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Item 9. 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 a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement;
|
5
|
|
(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 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; and
|
|
|
|
|
|
|
(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.
|
|
|
(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 Exchange Act (and, where applicable, each filing of
an employee benefit plan’s 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.
|
|
|
|
|
|
|
(h)
|
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.
|
6
SIGNATURES
The Registrant
. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Vancouver, Province of
British Columbia, Canada, on this 13
th
day of June, 2017.
|
|
|
B2GOLD CORP.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Roger Richer
|
|
|
|
Name: Roger Richer
|
|
|
|
Title: Executive Vice President, General
Counsel
|
|
|
|
and Secretary
|
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS,
that each person whose
signature appears below hereby constitutes and appoints Roger Richer and Mike
Cinnamond, or either of them, as the undersigned’s true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for such person and in such person’s name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments), exhibits thereto, and other documents in connection therewith to
this registration statement and any related registration statements necessary to
register additional securities and to file the same with exhibits thereto and
other documents in connection therewith with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as such person might or could do in person, hereby ratifying and
confirming all that each of said attorney-in-fact and agent, or their substitute
or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
|
Signature
|
|
Title
|
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Clive T.
Johnson
|
|
President, Chief Executive
Officer and
|
June 13, 2017
|
|
Clive T. Johnson
|
|
Director (Principal Executive
Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Mike
Cinnamond
|
|
Senior Vice President of Finance
and Chief
|
June 13, 2017
|
|
Mike Cinnamond
|
|
Financial Officer (Principal
Financial
|
|
|
|
|
Officer and Principal Accounting
Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Robert Cross
|
|
Chairman of the Board
|
June 13, 2017
|
|
Robert Cross
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Robert Gayton
|
|
Director
|
June 13, 2017
|
|
Robert Gayton
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Jerry Korpan
|
|
Director
|
June 13, 2017
|
|
Jerry Korpan
|
|
|
|
|
Signature
|
|
Title
|
Date
|
|
|
|
|
|
|
/s/ Bongani
Mtshisi
|
|
Director
|
June 13, 2017
|
|
Bongani Mtshisi
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Kevin Bullock
|
|
Director
|
June 13, 2017
|
|
Kevin Bullock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
George Johnson
|
|
Director and Authorized
Representative in
|
June 13, 2017
|
|
George Johnson
|
|
the United States
|
|
EXHIBIT INDEX
B2Gold (AMEX:BTG)
Historical Stock Chart
From Mar 2024 to Apr 2024
B2Gold (AMEX:BTG)
Historical Stock Chart
From Apr 2023 to Apr 2024
