As filed with the Securities and Exchange Commission
on November 18, 2024
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
TRILOGY METALS INC.
(Exact name of registrant as specified in its
charter)
British
Columbia
(State or other jurisdiction of incorporation or organization) |
|
98-1006991
(I.R.S. Employer Identification No.) |
Suite 901, 510 Burrard Street
Vancouver, British Columbia
Canada V6C 3A8
(Address of Principal Executive Offices) (Zip Code) |
Trilogy Metals Inc. Equity Incentive Plan
Trilogy Metals Inc. 2012 Restricted Share Unit
Plan
Trilogy Metals Inc. 2012 Deferred Share Unit
Plan |
| (Full
title of the plan) |
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
Kimberley R. Anderson
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, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ¨ |
|
Accelerated
filer ¨ |
| |
|
|
| Non-accelerated
filer x |
|
Smaller
reporting company x |
| |
|
|
| |
|
Emerging
growth company ¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for the complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
Explanatory Note
This Registration Statement on Form S-8
is filed for the purpose of registering 5,450,427 common shares of Trilogy Metals Inc. (the “Company”), which may be issued
pursuant to awards under the Company’s Equity Incentive Plan, Restricted Share Unit Plan, and Deferred Share Unit Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Item 1 and Item 2 of Part I of Form S-8 will be sent or given to participants
as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance
with the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”) and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation
of Documents by Reference. |
The following documents that have been filed by us with the SEC are
incorporated in this registration statement by reference:
| 2. | All
other reports filed by our company under Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) since November 30,
2023. |
Except to the extent that information is deemed
furnished and not filed pursuant to securities laws and regulations, all documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates that all securities
offered have been sold or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference
herein and to be a part hereof from the dates 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 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 statements 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. |
None.
| Item 6. | Indemnification
of Directors and Officers. |
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 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. |
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:
| (a) | is
or was a director or officer of the company, |
| (b) | is
or was a director or officer of another corporation |
| (i) | at
a time when the corporation is or was an affiliate of the company, or |
| (ii) | at
the request of the company, or |
| (c) | at
the request of the company, is or was, or holds or held a positive 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.
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 under this section;
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 or former director and his or
her heirs and legal personal representatives against all eligible penalties to which such person is or may be liable, and the
Registrant must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person
in respect of that proceeding. Pursuant to the Registrant’s articles, each 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 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 any eligible person.
Insofar as indemnification for liabilities arising
under the 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 SEC such indemnification is against public policy as expressed in the Securities
Act, and is therefore unenforceable.
The Registrant maintains directors’ and
officers’ liability insurance for its directors. This insurance provides coverage for indemnity payments made by the Registrant
to its directors and officers as required or permitted by law for losses, including legal costs, incurred by officers and directors in
their capacity as such. This policy also provides coverage directly to individual directors and officers if they are not indemnified
by the Registrant. The insurance coverage for directors and officers has customary exclusions, including 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.
| Item 7. | Exemption
from Registration Claimed. |
Not Applicable.
* Filed herewith
| (a) | The 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 hereof) 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) (§ 230.424(b) of this
chapter) 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 Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable,
in the effective registration statement.
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this 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 reports filed with or furnished to the SEC by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference into 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 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 Registrant's annual report
pursuant to Section 13(a) or 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 therein, 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 SEC such indemnification is against
public policy as expressed in such 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
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
19 of November, 2024.
| |
TRILOGY METALS INC. |
| |
|
|
| |
By: |
/s/
Elaine Sanders |
| |
Name: |
Elaine Sanders |
| |
Title: |
Chief Financial Officer |
SIGNATURES
OF OFFICERS AND DIRECTORS
AND Power of Attorney
Each person whose signature
appears below constitutes and appoints each of Tony Giardini and Elaine Sanders as the undersigned’s true and lawful attorney-in-fact
and agents, with the full power of substitution and resubstitution, for them 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 Securities and Exchange 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, as amended, this Registration Statement has been signed by the following persons in the capacities and
on the date indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Tony Giardini |
|
Director, President and Chief Executive Officer of the Company |
|
November 19, 2024 |
| Tony Giardini |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Elaine Sanders |
|
Vice President, Chief Financial Officer and Corporate Secretary of the Company |
|
November 19, 2024 |
| Elaine Sanders |
|
(Principal Financial Officer and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ James Gowans |
|
Director |
|
November 19, 2024 |
| James Gowans |
|
|
|
|
| |
|
|
|
|
| /s/ William Hayden |
|
Director |
|
November 19, 2024 |
| William Hayden |
|
|
|
|
| |
|
|
|
|
| /s/ William Hensley |
|
Director |
|
November 19, 2024 |
| William Hensley |
|
|
|
|
| |
|
|
|
|
| /s/ Gregory Lang |
|
Director |
|
November 19, 2024 |
| Gregory Lang |
|
|
|
|
| |
|
|
|
|
| /s/ Janice Stairs |
|
Director |
|
November 19, 2024 |
| Janice Stairs |
|
|
|
|
| |
|
|
|
|
| /s/ Diana Walters |
|
Director |
|
November 19, 2024 |
| Diana Walters |
|
|
|
|
Signature
of AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements
of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Trilogy Metals
Inc. has signed this Registration Statement on November 19, 2024.
| |
TRILOGY METALS
INC. |
| |
|
|
| |
By: |
/s/
Gregory Lang |
| |
Name: |
Gregory Lang |
| |
Title: |
Director |
Exhibit 5.1
 | |
Blake,
Cassels & Graydon LLP
Barristers & Solicitors
Patent & Trade-mark Agents
1133 Melville Street
Suite 3500, The Stack
Vancouver, BC V6E 4E5 Canada
Tel: 604-631-3300 Fax: 604-631-3309 |
| |
|
|
| November 19, 2024 | | Reference: 99166/1 |
| | | |
| Trilogy Metals Inc. | | |
| 609 Granville Street, Suite 1150 | | |
| Vancouver BC V7Y 1G5 | | |
| RE: |
Trilogy Metals Inc. – Registration Statement on Form S-8 |
Dear Sirs/Mesdames:
We have acted as Canadian counsel to Trilogy Metals
Inc., a company formed under the laws of the Province of British Columbia (the “Company”), in connection with the preparation
and filing with the United States Securities and Exchange Commission of a Registration Statement (the “Registration Statement”)
on Form S-8 under the United States Securities Act of 1933, as amended (the “Act”).
The purpose of the Registration Statement is to
register the offer and sale of up to 5,450,427 common shares of the Company (the “Shares”) issuable pursuant to the
following:
| (1) | the exercise of Options (“Options”) to be granted pursuant to the pursuant to the Trilogy
Metals Inc. Equity Incentive Plan (the “Trilogy Incentive Plan”); |
| (2) | the redemption of share units (the “RSUs”) issued under the Trilogy Metals Inc. 2012
Restricted Share Unit Plan (the “RSU Plan”); and |
| (3) | the redemption of deferred share units (the “DSUs”) governed by the Trilogy Metals
Inc. 2012 Non-Employee Directors Deferred Share Unit Plan (the “DSU Plan”). |
We have examined originals or copies, certified
or otherwise identified to our satisfaction, of the Notice of Articles and Articles of the Company and resolutions of the directors of
the Company and the shareholders of the Company with respect to the matters referred to herein. We have also examined such certificates
of public officials, officers of the Company, corporate records and other documents as we have deemed necessary as a basis for the opinion
expressed below. In our examination of such documents, we have assumed the authenticity of all documents submitted to us as certified
copies or facsimiles thereof.
Our opinions herein are limited to the laws of
British Columbia and the federal laws of Canada applicable therein.
Based upon the foregoing, and provided that all
necessary corporate action has been taken by the Company to authorize the issuance of the Options, RSUs and DSUs: (1) upon the due
exercise of the Options granted pursuant to and in accordance with the Trilogy Incentive Plan; (2) upon the redemption of RSUs in
accordance with their terms and the RSU Plan; and (3) upon the redemption of DSUs in accordance with their terms and the DSU Plan,
the Shares underlying the Options, RSUs and DSUs will be validly issued as fully paid and non-assessable.
Consent is hereby given to the use of our name
in the Registration Statement and to the filing, as an exhibit to the Registration Statement, of this opinion. In giving such consent,
we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act.
Yours truly,
“Blake, Cassels & Graydon LLP”
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Trilogy Metals Inc. of our report dated February 8, 2024 relating to the
consolidated financial statements of Trilogy Metals Inc., which appears in Trilogy Metals Inc. Annual Report on Form 10-K for
the year ended November 30, 2023.
/s/PricewaterhouseCoopers LLP
Chartered Professional Accountants
Vancouver, Canada
November 19, 2024
PricewaterhouseCoopers LLP
PricewaterhouseCoopers Place, 250 Howe Street, Suite 1400, Vancouver,
British Columbia, Canada V6C 3S7
T: +1 604 806 7000, F: +1 604 806 7806, ca_vancouver_main_fax@pwc.com,
www.pwc.com/ca
“PwC” refers to PricewaterhouseCoopers LLP, an Ontario
limited liability partnership.
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Trilogy Metals Inc. of our report dated February 8, 2024 relating to the financial
statements of Ambler Metals LLC, which appears in Trilogy Metals Inc.’s Annual Report on Form 10-K for the year ended
November 30, 2023.
/s/PricewaterhouseCoopers LLP
Chartered Professional Accountants
Vancouver, Canada
November 19, 2024
PricewaterhouseCoopers LLP
PricewaterhouseCoopers Place, 250 Howe Street, Suite 1400, Vancouver,
British Columbia, Canada V6C 3S7
T: +1 604 806 7000, F: +1 604 806 7806, ca_vancouver_main_fax@pwc.com,
www.pwc.com/ca
“PwC” refers to PricewaterhouseCoopers LLP, an Ontario
limited liability partnership.
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Trilogy Metals Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type |
Security Class
Title |
Fee
Calculation Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee Rate |
Amount of
Registration
Fee |
| Equity |
Common Shares, no par value |
Rule 457(c) and 457(h) |
521,765 |
$1.1376(2)(3) |
$593,559.86 |
0.0001531 |
$90.88 |
| Equity |
Common Shares, no par value |
Rule 457(c) and 457(h) |
4,828,309 |
$1.1376 (2)(4) |
$5,492,684.32 |
0.0001531 |
$840.93 |
| Equity |
Common Shares, no par value |
Rule 457(c) and 457(h) |
100,353 |
$1.1376 (2)(5) |
$114,161.58 |
0.0001531 |
$17.48 |
| Total Offering Amounts |
|
$6,200,405.76 |
|
$949.29 |
| Total Fee Offsets |
|
-- |
|
-- |
| Net Fee Due |
|
|
|
$949.29 |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers any additional shares of Trilogy Metals Inc.’s (the “Registrant”) common shares that become issuable
under the Trilogy Metals Inc. Equity Incentive Plan, Trilogy Metals Inc. 2012 Restricted Share Unit Plan, and the Trilogy Metals Inc.
2012 Deferred Share Unit Plan, by reason of any stock dividend, stock split, recapitalization or similar transaction effected without
the Registrant’s receipt of consideration which would increase the number of outstanding shares of common stock. |
| (2) | Pursuant to Rule 457(c) and 457(h) under the Securities Act, the Proposed Maximum Aggregate Offering Price with respect
to the common shares is calculated based upon the average of high and low prices of the Registrant’s common stock as reported on
NYSE American on November 15, 2024. |
| (3) | Represents common shares, without par value, that may be issued pursuant to future grants under the Trilogy Metals Inc. Equity Incentive
Plan. |
| (4) | Represents common shares, without par value, that may be issued pursuant to the Trilogy Metals Inc. 2012 Restricted Share Unit Plan. |
| (5) | Represents common shares, without par value, that may be issued pursuant to the Trilogy Metals Inc. 2012 Deferred Share Unit Plan. |
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