Securities Registration: Employee Benefit Plan (s-8)
August 09 2019 - 5:11PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on
August 9, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933
SUNOPTA INC.
(Exact
name of registrant as specified in charter)
Canada
|
Not Applicable
|
(State or other jurisdiction of
|
(IRS Employer
|
incorporation or organization)
|
Identification No.)
|
2233 Argentia Road, Suite 401
|
Mississauga, Ontario, L5N 2X7, Canada
|
(Address, including zip code,
|
of registrants principal executive offices)
|
|
|
Amended 2013 Stock Incentive Plan
|
(Full title of the plan)
|
|
|
Robert McKeracher
|
Vice President and Chief Financial Officer
|
2233 Argentia Road, Suite 401
|
Mississauga, Ontario, L5N 2X7, Canada
|
(905) 821-9669
|
(Name, address, including zip code, and
|
telephone number, including area code, of agent for
service)
|
|
|
Copy to:
|
Reed W. Topham, Esq.
|
Stoel Rives LLP
|
201 South Main Street, Suite 1100
|
Salt Lake City, UT 84111
|
801-328-3131
|
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. (Check one):
Large accelerated filer [ x ]
|
Accelerated filer [ ]
|
Non-accelerated filer [ ]
|
Smaller reporting company [ ]
|
(Do not check if a smaller reporting company)
|
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed
|
|
|
Proposed
|
|
|
|
|
Title of
|
|
|
|
|
Maximum
|
|
|
Maximum
|
|
|
Amount
|
|
Securities
|
|
Amount
|
|
|
Offering
|
|
|
Aggregate
|
|
|
of
|
|
to Be
|
|
to Be
|
|
|
Price Per
|
|
|
Offering
|
|
|
Registration
|
|
Registered(1)
|
|
Registered
|
|
|
Share (2)
|
|
|
Price (2)
|
|
|
Fee
|
|
Common Stock and attached purchase rights
|
|
1,000,000 Shares
|
|
$
|
2.44
|
|
$
|
2,440,000
|
|
$
|
295.73
|
|
(1)
|
In accordance with Rule 416(a) of the Securities Act of
1933, as amended (the "Securities Act"), this registration statement (this
"Registration Statement") shall also cover any additional shares of Common
Stock and attached purchase rights which become issuable under the Amended
2013 Stock Incentive Plan by reason of any stock dividend, stock split, or
similar transaction.
|
(2)
|
Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933
(the "Securities Act"). The calculation of the registration fee is based
on $2.44, which was the average of the high and low prices of the Common
Stock on August 7, 2019 on the NASDAQ Global Select Market. The
registrants shares of Common Stock trade on the NASDAQ Global Select
Market under the symbol STKL and on the Toronto Stock Exchange under the
symbol SOY.
|
EXPLANATORY NOTE
SunOpta Inc. (the "Registrant")
is registering under this Registration Statement on Form S-8 1,000,000 shares of
its Common Stock and attached purchase rights for issuance under the 2013 Stock
Incentive Plan, as amended (the "2013 Plan"). The 2013 Plan originally reserved
1,250,000 shares of Common Stock (the "Initial Reserved Shares") plus additional
shares of Common Stock reserved for purposes of the Registrants 2002 Stock
Option Plan, as Amended and Restated May 2011 (the "2002 Option Plan") as
described below. On May 10, 2016, the Registrants shareholders approved an
amendment to the 2013 Plan to increase the number of Initial Reserved Shares
from 1,250,000 to 3,000,000 shares of Common Stock (the "Reserved Shares"). The
Registrant registered such additional 1,750,000 shares of Common Stock pursuant
to a Registration Statement on Form S-8 (Registration No. 333-211873). On May
24, 2017, the Registrants shareholders approved further amendments to the 2013
Plan, which increased the number of Reserved Shares from 3,000,000 to 6,800,000
shares of Common Stock. The Registrant registered such additional 3,800,000
shares of Common Stock pursuant to a Registration Statement on Form S-8
(Registration No. 333-218515)
The Registrant previously
registered an aggregate of 7,500,000 shares of Common Stock for issuance under
the 2002 Option Plan pursuant to three Registration Statements on Form S-8
(Registration Nos. 333-124911, 333-144827 and 333-176675) (the "Prior Plan Form
S-8s"). As of May 28, 2013, the Registrant combined the 2002 Option Plan into
the 2013 Plan. According to the terms of the 2013 Plan, the shares of Common
Stock that were available for grant under the 2002 Option Plan as of May 28,
2013 (the "Carry Over Shares"), and any shares of Common Stock subject to
options previously granted under the 2002 Option Plan that expire or terminate
subsequent to May 28, 2013 without being exercised, are included in the reserve
of shares of Common Stock available for issuance under the 2013 Plan. The total
number of shares of Common Stock previously reserved and available for grants
under the 2002 Option Plan on May 28, 2013 was 867,031.
On October 17, 2013, the
Registrant filed post-effective amendments to each of the Prior Plan Form S-8s
to deregister the Carry Over Shares previously registered for issuance under the
2002 Option Plan. Also, on October 17, 2013, the Registrant filed a new
registration statement on Form S-8 (File No. 333-191777) (the "2013 Form S-8")
to register the Initial Reserved Shares. In accordance with the principles set
forth in Interpretation 89 under Section G of the Manual of Publicly Available
Telephone Interpretations of the SEC Division of Corporation Finance (July 1997)
and Instruction E to the General Instructions to Form S-8, the 2013 Form S-8, in
addition to registering the 1,250,000 Initial Reserved Shares, (i) reallocated
the Carry Over Shares from the 2002 Option Plan to the 2013 Plan and registered
the Carry Over Shares which may be issued under the 2013 Plan and (ii) carried
over from the Prior Plan Form S-8s the registration fees paid for the Carry Over
Shares registered pursuant to the 2013 Registration Statement.
On May 30, 2019, the Registrants
shareholders approved further amendments to the 2013 Plan, which increased the
number of Reserved Shares from 6,800,000 to 7,800,000 shares of Common Stock.
This Registration Statement is being filed in order to register such additional
1,000,000 shares of Common Stock and attached purchase rights which may be
offered or sold to participants under the 2013 Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which
have been filed previously by the registrant with the Commission, are
incorporated herein by reference and made a part hereof:
|
(a)
|
the registrants Annual Report on Form 10-K for the
fiscal year ended December 29, 2018 (the "Annual Report"), as filed with
the Commission on February 27, 2019;
|
|
|
|
|
(b)
|
the registrants Definitive Proxy Statement for the 2019
Annual and Special Meeting of Shareholders, as filed with the Commission
on April 19, 2019;
|
|
|
|
|
(c)
|
the registrants Quarterly Report on Form 10-Q for the
quarter ended June 29, 2019, as filed with the Commission on August 8,
2019;
|
|
|
|
|
(d)
|
the registrants Current Reports on Form 8-K filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended, since the end of the fiscal year covered by the Annual Report;
and
|
|
|
|
|
(e)
|
the descriptions of the registrants shares of Common
Stock and rights set forth in its Current Report on Form 8-K filed on
September 2, 2011, its Current Report on Form 8-K filed on November 13,
2015, its Current Report on Form 8-K filed on April 20, 2016, and its
Current Report on Form 8-K filed on October 12, 2016, including any
amendments or reports filed for the purpose of updating such
descriptions.
|
All reports and other documents
filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment hereto, which indicates that all securities offered
hereunder 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.
Item 4. Description of Securities.
|
Not applicable.
Item 5. Interests of Named Experts and Counsel.
|
Not applicable.
Item 6. Indemnification of Directors and Officers.
|
The Canada Business Corporations
Act, as amended (the "CBCA"), as well as the registrants By-Law No. 14, as
amended (the "By-Law") and the insurance policies maintained by the registrant
provide for the indemnification of the its directors and officers in respect of
certain liabilities incurred in the course of their duties.
Under the CBCA, the registrant
may indemnify a present or former director or officer, or former director or
officer or another individual who acts or acted at its 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 the association with us or another entity.
However, the registrant may only indemnify an individual if the following
conditions of indemnification are met: (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 interests of the other entity for
which the individual acted as a director or officer or in a similar capacity at
our request; and (b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, if the individual had
reasonable grounds for believing the individuals conduct was lawful. The
registrant may also advance moneys to a director, officer or other individual
for the costs, charges and expenses of such a proceeding. However, the
individual is required to repay those amounts if he or she does not fulfill the
specified conditions. In the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, an individual is entitled to
indemnity from the registrant if the foregoing conditions of indemnification are
met and the individual was not judged by the court or other competent authority
to have committed any fault or omitted to do anything that such individual ought
to have done. Further, with the approval of a court, the registrant may
indemnify or advance moneys to a director or officer in respect of an action by
the registrant or on its behalf or on behalf of another entity to procure a
judgment in its favor, to which the individual is made a party because of his or
her association with the registrant or such other entity so long as the
foregoing conditions of indemnification are met.
The By-Law provides for the
mandatory indemnification of every director and officer of the registrant and
his or her heirs, executors, administrators and other legal personal
representatives against all liabilities, costs, charges and expenses that he
sustains or incurs in respect of any action, suit or proceeding that is proposed
or commenced against him or her for or in respect of anything done or permitted
by him or her in respect of the execution of the duties of his office as well as
all other costs, charges and expenses that he or she sustains or incurs in
respect of the affairs of the registrant; provided, in each case, such person
acted honestly and in good faith with a view to the best interests of the
registrant.
Both the CBCA and the By-Law also
permit the registrant to purchase and maintain insurance for the benefit of any
director and officer and his or her heirs, executors, administrators and other
legal personal representatives. The registrant has purchased and intends to
maintain insurance on behalf of any person who is or was one of its directors or
officers, or is or was one of its directors or officers serving at its request
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him or her in any such capacity,
or arising out of his or her status as such, so long as the director or officer
acted honestly and in good faith with a view to the best interests of the
registrant.
Insofar as indemnification for
liabilities arising under the Act 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.
Item 7. Exemption from Registration Claimed.
|
Not applicable.
See the accompanying Exhibit
Index for a list of Exhibits to this Registration Statement, which is
incorporated by reference herein.
|
(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;
|
|
|
|
|
|
|
|
|
(ii)
|
To reflect in the prospectus any facts or events arising
after the effective date of this 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.
|
|
|
|
|
(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 information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic 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 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.
|
|
(b)
|
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrants annual report pursuant to section 13(a) or
section 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 this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
|
|
|
|
|
(c)
|
Insofar as indemnification for liabilities arising under
the Securities Act 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, the registrant certifies that it has reasonable grounds to
believe that it meets all 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 Mississauga, Province of
Ontario, Canada, on this 9th day of August, 2019.
|
SUNOPTA INC.
|
|
|
|
|
By:
|
/s/
Robert McKeracher
|
|
|
Robert McKeracher
|
|
|
Vice President and Chief Financial
Officer
|
|
|
(Principal Financial and Accounting
Officer)
|
POWER OF ATTORNEY
Each of the undersigned hereby
constitutes and appoints Robert McKeracher as his or her attorney-in-fact and
agent, with full power of substitution and resubstitution for him or her in any
and all capacities, to sign any and all amendments or post-effective amendments
to this registration statement, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
in connection with such matters and hereby ratifying and confirming that such
attorney-in-fact and agent or his or her substitute may 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 date indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Joseph Ennen
|
|
Chief Executive Officer and Director
|
|
August 9, 2019
|
Joseph Ennen
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/ Robert
McKeracher
|
|
Vice President and Chief Financial Officer
|
|
August 9, 2019
|
Robert McKeracher
|
|
(Principal Financial and Accounting
|
|
|
|
|
Officer)
|
|
|
|
|
|
|
|
/s/ Albert Bolles
|
|
Director
|
|
August 9, 2019
|
Albert Bolles
|
|
|
|
|
|
|
|
|
|
/s/ Derek Briffett
|
|
Director
|
|
August 9, 2019
|
Derek Briffett
|
|
|
|
|
|
|
|
|
|
/s/ Michael
Detlefsen
|
|
Director
|
|
August 9, 2019
|
Michael Detlefsen
|
|
|
|
|
|
|
|
|
|
/s/ Rebecca Fisher
|
|
Director
|
|
August 9, 2019
|
Rebecca Fisher
|
|
|
|
|
|
|
|
|
|
/s/ Dean Hollis
|
|
Director
|
|
August 9, 2019
|
Dean Hollis
|
|
|
|
|
|
|
|
|
|
/s/ Katrina Houde
|
|
Director
|
|
August 9, 2019
|
Katrina Houde
|
|
|
|
|
|
|
|
|
|
/s/ Leslie Starr
Keating
|
|
Director
|
|
August 9, 2019
|
Leslie Starr Keating
|
|
|
|
|
|
|
|
|
|
/s/ Brendan
Springstubb
|
|
Director
|
|
August 9, 2019
|
Brendan Springstubb
|
|
|
|
|
EXHIBIT INDEX
Exhibit
|
|
Number
|
Exhibit Description
|
4.1
|
Amalgamation of Stake Technology Ltd. and 3754481
Canada Ltd. (formerly George F. Pettinos
(Canada) Limited)
(incorporated by reference to Exhibit 3.1 to the Companys Annual Report
on
Form 10-KSB for the year ended December 31, 2000).
|
4.2
|
Certificate of Amendment, dated October 31, 2003, to
change the Companys name from Stake
Technology Ltd. to SunOpta
Inc. (incorporated by reference to Exhibit 3i(b) to the Companys
Annual Report on Form 10-K for the year ended December 31, 2003).
|
4.3
|
Articles of Amalgamation of SunOpta Inc. and Sunrich
Valley Inc., Integrated Drying Systems Inc., Kettle Valley Dried
Fruits Ltd., Pro Organics Marketing Inc., Pro Organics Marketing (East) Inc., 4157648 Canada Inc. and 4198000 Canada Ltd., dated January
1, 2004 (incorporated by reference to Exhibit 3i(c) to the
Companys Annual Report on Form 10-K for the year ended December
31, 2003).
|
4.4
|
Articles of Amalgamation of SunOpta Inc. and 6319734
Canada Inc., 4157656 Canada Inc. and
Kofman-Barenholtz Foods
Limited, dated January 1, 2005 (incorporated by reference to Exhibit
3i(d) to the Companys Annual Report on Form 10-K for the year ended
December 31, 2004).
|
4.5
|
Articles of Amalgamation of SunOpta Inc. and 4307623
Canada Inc., dated January 1, 2006
(incorporated by reference to
Exhibit 3i(e) to the Companys Annual Report on Form 10-K for
the
year ended December 31, 2005).
|
4.6
|
Articles of Amalgamation of SunOpta Inc., 4208862 SunOpta Food Ingredients Canada Ltd.,
4406150 Canada Inc. and
4406168 Canada Inc., dated January 1, 2007 (incorporated by
reference to Exhibit 3i(f) to the Companys Annual Report on Form 10-K
for the year ended
December 31, 2007).
|
4.7
|
Articles of Amalgamation of SunOpta Inc. and 4460596
Canada Inc., dated January 1, 2008
(incorporated by reference to
Exhibit 3i(g) to the Companys Annual Report on Form 10-K for
the
year ended December 31, 2007).
|
4.8
|
Amended and Restated By-law No. 14, dated May 27, 2010
(incorporated by reference to
Exhibit 4.4 to the Companys
Registration Statement on Form S-3 filed on July 3, 2014).
|
4.9
|
By-Law Number 15 of SunOpta Inc. (incorporated by
reference to Exhibit 3.1 to the Companys
Current Report on Form
8-K filed on November 13, 2015).
|
4.10
|
Form of Certificate representing Common Shares, no par
value (incorporated by reference to
Exhibit 4.9 to the Companys
Registration Statement on Form S-8 filed on September 2, 2011).
|
4.11
|
Amended and Restated Shareholder Rights Plan
Agreement, dated November 10, 2015,
amended and restated as of
April 18, 2016, between SunOpta Inc. and American Stock Transfer
& Trust Company, LLC, as rights agent (incorporated by reference to
Exhibit 4.1 to the
Companys Current Report on Form 8-K filed on
April 20, 2016).
|
4.12
|
Amended and Restated Certificate of Incorporation of
SunOpta Foods Inc., setting forth the
terms of its Series A
Preferred Stock, which is exchangeable for Common Shares o
f SunOpta
Inc. (incorporated by reference to Exhibit 4.1 to the Companys Current
Report on Form 8-K
filed on October 12, 2016).
|
4.13
|
Articles of Amendment of SunOpta Inc., setting forth
the terms of its Special Shares, Series 1
(incorporated by
reference to Exhibit 4.2 to the Companys Current Report on Form 8-K filed
on
October 12, 2016).
|
4.14
|
Amended 2013 Stock Incentive Plan (incorporated by
reference to Exhibit A to the Companys
Definitive Proxy Statement
on Schedule 14A filed on April 19, 2019).
|
5.1*
|
Opinion of Wildeboer Dellelce LLP.
|
23.1*
|
Consent of Wildeboer Dellelce LLP (included in Exhibit
5.1).
|
23.2*
|
Consent of Ernst & Young LLP, Independent Registered
Public Accounting Firm.
|
23.3*
|
Consent of Deloitte LLP, Independent Registered Public
Accounting Firm.
|
24.1*
|
Power of Attorney (included on signature page hereto).
|
*Filed herewith
SunOpta (NASDAQ:STKL)
Historical Stock Chart
From Aug 2024 to Sep 2024
SunOpta (NASDAQ:STKL)
Historical Stock Chart
From Sep 2023 to Sep 2024