As filed with the Securities and Exchange Commission on November
23, 2020
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_______________
WESTWATER RESOURCES, INC.
(Exact name of Registrant as specified in its charter)
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Delaware
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75-2212772
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer Identification
Number)
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6950 South Potomac Street, Suite 300
Centennial, Colorado 80112
(Address, including zip code, of
principal executive offices)
_______________
Westwater Resources, Inc. 2013 Omnibus Incentive Plan, as
amended
Inducement Stock Option Awards
Inducement Restricted Stock Unit
Awards
(Full title of the plan)
Jeffrey L. Vigil
Vice President and Chief Financial Officer
Westwater Resources, Inc.
6950 South Potomac Street, Suite 300
Centennial, Colorado 80112
(303) 531-0516
(Name, address and telephone number, including area code, of agent
for service)
_______________
Copies to:
Paul Hilton, Esq.
David R. Crandall, Esq.
Hogan
Lovells US LLP
1601
Wewatta Street, Suite 900
Denver, Colorado 80202
Telephone: (303) 899-7300
Facsimile: (303) 899-7333
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 oAccelerated
filer o
Non-accelerated
filer þSmaller reporting
company þ
Emerging growth
company o
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 Securities Act. o
CALCULATION OF
REGISTRATION FEE
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Title of Securities to be
Registered
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Amount to be Registered
(1)
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Proposed Maximum Offering
Price Per Share
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Proposed Maximum Aggregate
Offering Price
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Amount of Registration Fee
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Common Stock, par value $0.001 per
share
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416,000 (2)
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$5.22 (5)
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$2,171,520
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$236.91
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Common Stock, par value $0.001 per
share
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23,997 (3)
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$2.65 (6)
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$63,593
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$6.94
|
|
Common Stock, par value $0.001 per
share
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24,906 (4)
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$5.22 (5)
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$130,009
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$14.18
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Total
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$2,365,121
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$258.03
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(1)Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement also covers any
additional shares of the Common Stock, par value $0.001 per share
(the “Common Stock”) that may become issuable under the Westwater
Resources, Inc. 2013 Omnibus Incentive Plan (as amended, the “2013
Plan”), the Inducement Stock Option Awards and the Inducement
Restricted Stock Unit Awards by reason of any stock dividend, stock
split, recapitalization or other similar transaction.
(2)Represents
increases to the number of shares of Common Stock reserved for
issuance under the 2013 Plan, which increases were approved by the
Registrant’s stockholders on April 18, 2019 and April, 28
2020.
(3)Consists
of shares issuable under a new hire inducement stock option award
granted outside of the 2013 Plan on July 1, 2020 to a certain
employee in accordance with Nasdaq Listing Rule 5635(c)(4), as an
inducement material to the employee’s entering into employment with
the registrant.
(4)Consists
of shares issuable under new hire inducement restricted stock unit
awards granted outside of the 2013 Plan on July 1, 2020 to a
certain employee in accordance with Nasdaq Listing Rule 5635(c)(4),
as an inducement material to the employee’s entering into
employment with the registrant.
(5)Estimated
solely for the purpose of calculating the registration fee pursuant
to 457(c) and 457(h) of the Securities Act, and based upon the
average of the high and low prices of the Registrant’s Common Stock
as reported on the Nasdaq Capital Market on November 18,
2020.
(6)Estimated
solely for the purpose of calculating the registration fee pursuant
to Rule 457(h) of the Securities Act of 1933, as amended, based
upon the exercise price of the option under the inducement stock
option award.
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EXPLANATORY NOTE
On April 18, 2019, the stockholders of Westwater Resources, Inc.
(the “Company” “we,” “us” or “our”) approved an amendment to the
Westwater Resources, Inc. 2013 Omnibus Incentive Plan (as amended,
the “2013 Plan”) to increase the authorized number of shares of
common stock available and reserved for issuance under the 2013
Plan by 66,000 shares, and on April 28, 2020, the Company’s
stockholders approved another amendment to the 2013 Plan to
increase the authorized number of shares of common stock available
and reserved for issuance under 2013 Plan by an additional 350,000
shares. The shares of common stock being registered pursuant to
this registration statement on Form S-8 are additional securities
of the same class as the securities for which registration
statements on Form S-8 (File No. 333-226927 and 333-193075) were
filed with the Securities and Exchange Commission (the
“Commission”) on August 8, 2018 and December 24, 2013,
respectively. Pursuant to General Instruction E to Form S-8, the
contents of such earlier registration statements are incorporated
by reference into this registration statement, except that the
provisions contained in Part II of such earlier registration
statements are modified as set forth in this registration
statement.
Separately, this registration statement is being filed for the
purpose of registering an aggregate of 48,903 shares of Common
Stock reserved for issuance in accordance with awards the
registrant has granted to Jay Wago in connection with his
appointment as the registrant’s Vice President – Sales and
Marketing, which awards have been made outside of a stockholder
approved equity incentive plan in accordance with the employment
inducement award exemption provided by Rule 5635(c)(4) of the
Nasdaq Listing Rules.
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
As permitted by the rules of the Commission, this registration
statement omits the information specified in Part I of Form S-8.
The documents containing the information specified in Part I will
be delivered to the participants as required by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the “Securities
Act”). Such documents are not being filed with the Commission as
part of this registration statement or as a prospectus or
prospectus supplement pursuant to Rule 424. These documents and the
documents incorporated by reference in this registration statement
pursuant to Item 3 of Part II hereof, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of
Documents by Reference.
The following documents filed by the Company with the Commission
are hereby incorporated by reference in this registration
statement:
(a)The
Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2019, filed with the SEC on February 14, 2020 and as
amended on February 28, 2020;
(b)The
Company’s Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2020, June 30, 2020 and September 30, 2020, filed
with the SEC on May 13, 2020, August 5, 2020 and November 12, 2020,
respectively;
(c)The
Company’s Current Reports on Forms 8-K filed with the SEC on
February 4, 2020, March 23, 2020, April 13, 2020, April 28, 2020,
April 30, 2020, May 5, 2020, May 22, 2020, June 1, 2020, September
4, 2020 and October 8, 2020; and
(d)The
description of the Company’s common stock contained in its Form 8-A
filed on April 11, 2007, including any amendments or reports filed
for the purpose of updating the description.
1
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), after the date hereof (excluding any
documents or portions of such documents that have been “furnished”
but not “filed” for purposes of the Exchange
Act), and prior to the filing of a post-effective amendment that
indicates that all the securities offered hereby have been sold or
that deregisters the securities offered hereby then remaining
unsold, shall also be deemed to be incorporated by reference in
this registration statement and to be a part hereof from the date
of filing of such documents.
Any statement contained in this registration statement or in a
document incorporated or deemed to be incorporated by reference in
this registration statement will be deemed to be modified or
superseded 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 in this registration statement
modifies or supersedes that statement. Any statement so modified or
superseded will 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.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Under Delaware law, a corporation may indemnify any person who was
or is a party or is threatened to be made a party to an action
(other than an action by or in the right of the corporation) by
reason of his service as a director or officer of the corporation,
or his service, at the corporation’s request, as a director,
officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys’ fees) that are
actually and reasonably incurred by him (“Expenses”), and
judgments, fines and amounts paid in settlement that are actually
and reasonably incurred by him, in connection with the defense or
settlement of such action, provided that he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
corporation’s best interests, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. Although Delaware law permits a corporation
to indemnify any person referred to above against Expenses in
connection with the defense or settlement of an action by or in the
right of the corporation, provided that he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
corporation’s best interests, if such person has been judged liable
to the corporation, indemnification is only permitted to the extent
that the Court of Chancery (or the court in which the action was
brought) determines that, despite the adjudication of liability,
such person is entitled to indemnity for such Expenses as the court
deems proper. The Delaware General Corporation Law (the “DGCL”)
also provides for mandatory indemnification of any director,
officer, employee or agent against Expenses to the extent such
person has been successful in any proceeding covered by the
statute. In addition, the DGCL provides the general authorization
of advancement of a director’s or officer’s litigation expenses in
lieu of requiring the authorization of such advancement by the
Board of Directors in specific cases, and that indemnification and
advancement of expenses provided by the statute shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement or otherwise.
Our amended and restated bylaws and restated certificate of
incorporation provide for indemnification of our directors and
officers and for advancement of litigation expenses to the fullest
extent permitted by current Delaware law. In addition, the Company
has entered into an indemnification agreement with each director
and officer that provides for indemnification and advancement of
litigation expenses to fullest extent permitted by the DCGL.
We maintain a policy of directors and officers liability insurance
which reimburses us for expenses which we may incur in connection
with the foregoing indemnity provisions and which may provide
direct indemnification to directors and officers where we are
unable to do so.
2
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8.
Exhibits
Exhibit
NumberDescription
4.1Westwater
Resources, Inc. 2013 Omnibus Incentive Plan, as amended
(incorporated by reference to Appendix A to the Company’s
Definitive Proxy Statement on Schedule 14A filed on March 3,
2020).
4.2Restated
Certificate of Incorporation of the Company, as amended through
April 22, 2019 (incorporated by reference to Exhibit 3.1
to the Company’s Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2019).
4.3Amended and
Restated Bylaws of the Company, as amended August 21,
2017 (incorporated by reference to Exhibit 3.2 to the
Company’s Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2017).
5.1*Opinion of Hogan
Lovells US LLP as to the legality of the securities being
registered.
23.1*Consent
of Hogan Lovells US LLP (included in Exhibit 5.1).
23.2*Consent of Moss
Adams LLP.
24*Power
of Attorney (included on signature page).
99.1*Form of Inducement
Grant Restricted Stock Unit Agreement.
99.2*Form of Inducement
Grant Stock Option Agreement.
* Filed herewith
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;
(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 this 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% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in
the effective registration statement; and
(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;
3
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if 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, each such post-effective amendment 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.
(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 the purposes of
determining any liability under the Securities Act, 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 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.
4
SIGNATURES
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 Centennial, State of
Colorado, on the 23th day of November, 2020.
WESTWATER RESOURCES, INC.
By: /s/ Christopher
M. Jones
Name:Christopher
M. Jones
Title:President
and Chief Executive Officer
POWER OF
ATTORNEY
Each person whose signature
appears below constitutes and appoints Christopher M. Jones and
Jeffrey L. Vigil, and each of them severally, his or her true and
lawful attorney-in-fact, with the power of substitution, for him or
her in any and all capacities, to sign any amendments (including
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,
hereby ratifying and confirming all that said attorneys-in-fact, or
their substitute or substitutes, 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 dates
indicated.
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Signature
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Title
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Date
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/s/
Christopher M. Jones
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President,
Chief Executive Officer and Director (Principal Executive
Officer)
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November 23, 2020
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Christopher M. Jones
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/s/
Jeffrey L. Vigil
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Vice
President – Finance and Chief Financial Officer (Principal
Financial and Accounting Officer)
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November 23, 2020
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Jeffrey L. Vigil
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/s/
Terence J. Cryan
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Director and
Chairman
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November 23, 2020
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Terence J. Cryan
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/s/
Karli S. Anderson
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Director
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November 23, 2020
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Karli S. Anderson
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/s/
Tracy D. Pagliara
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Director
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November 23, 2020
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Tracy D. Pagliara
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/s/
Deborah A. Peacock
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Director
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November 23, 2020
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Deborah A. Peacock
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