As filed with the Securities and Exchange Commission on December 29, 2023

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)

 

Delaware   75-2212772
(State or other jurisdiction of incorporation or organization)   (IRS Employer Identification Number)

 

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

(Full title of the plan)

 

Steven M. Cates

Senior 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:

 

Lucy Stark, Esq.

Leah Neumann, Esq.

Holland & Hart LLP

555 17th Street, Suite 3200

Denver, Colorado 80202

Telephone: (303) 295-8000

 

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 complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.  ¨

 

 

 

 

 

 

EXPLANATORY NOTE

 

On May 10, 2023, 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 1,500,000 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 Nos. 333-257421, 333-250866, 333-226927 and 333-193075) were filed with the Securities and Exchange Commission (the “SEC”) on June 25, 2021, November 23, 2020, 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.

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

As permitted by the rules of the SEC, 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 SEC 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 SEC 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, 2022, filed with the SEC on March 6, 2023;

 

(b)The Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023, June 30, 2023, and September 30, 2023, filed with the SEC on May 10, 2023, August 14, 2023, and November 14, 2023, respectively;

 

(c)The Company’s Current Reports on Form 8-K filed with the SEC on January 17, 2023, January 20, 2023, March 7, 2023, May 11, 2023, August 11, 2023, December 13, 2023, and December 13, 2023; 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.

 

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.

 

1

 

 

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 DGCL.

 

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.

 

Item 7. Exemption from Registration Claimed.

 

Not Applicable.

 

2

 

 

Item 8. Exhibits

 

Exhibit
Number
  Description
4.1  Westwater Resources, Inc. 2013 Omnibus Incentive Plan, as amended (incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement on Schedule 14A filed on March 14, 2023).
    
4.2  Restated 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).
    
4.3  Amended and Restated Bylaws of the Company, as amended May 10, 2021 (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021).
    
5.1*  Opinion of Holland & Hart LLP as to the legality of the securities being registered.
    
23.1*  Consent of Holland & Hart LLP (included in Exhibit 5.1).
    
23.2*  Consent of Moss Adams LLP.
    
24*  Power of Attorney (included on signature page).
    
107*  Filing Fee Table.

 

* 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 SEC 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;

 

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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.

 

3

 

 

(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 SEC 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 29th day of December 2023.

 

  WESTWATER RESOURCES, INC.
   
  By: /s/ Frank Bakker
  Name: Frank Bakker
  Title: President and Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Frank Bakker and Steven M. Cates, and each of them severally, as his or her true and lawful attorney-in-fact, with the power of substitution and resubstitution, for him or her, and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, 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.

 

Signature   Title   Date
         
/s/ Frank Bakker   President, Chief Executive Officer and Director (Principal Executive Officer)   December 29, 2023
Frank Bakker    
         
/s/ Steve M. Cates   Senior Vice President – Finance and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)   December 29, 2023
Steve M. Cates    
         
/s/ Terence J. Cryan   Director and Chairman   December 29, 2023
Terence J. Cryan    
         
/s/ Karli S. Anderson   Director   December 29, 2023
Karli S. Anderson    
         
/s/ Tracy D. Pagliara   Director   December 29, 2023
Tracy D. Pagliara    
         
/s/ Deborah A. Peacock   Director   December 29, 2023
Deborah A. Peacock    

 

5

 

 

Exhibit 5.1

 

 

December 29, 2023

 

Board of Directors
Westwater Resources, Inc.

6950 South Potomac Street, Suite 300

Centennial, Colorado 80112

 

Re:        Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Westwater Resources, Inc., a Delaware corporation (the “Company”), in connection with its Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”), pursuant to the Securities Act of 1933, as amended (the “Securities Act”). Pursuant to the Registration Statement, the Company is registering for issuance under the Westwater Resources, Inc. 2013 Omnibus Incentive Plan (as amended, the “Plan”) an additional 1,500,000 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act in connection with the Registration Statement, and no opinion is expressed or may be implied herein as to any matter pertaining to the contents of the Registration Statement other than as to the valid issuance of the Shares.

 

As the basis for the opinion hereinafter expressed, we have reviewed originals or copies of the following:

 

A.an executed copy of the Registration Statement;

 

B.a copy of the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on May 6, 2004, the Certificate of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on April 4, 2006, the Certificate of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on January 22, 2013, the Certificate of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on March 7, 2016, the Certificate of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on August 16, 2017, and the Certificate of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on April 18, 2019;

 

C.a copy of the Amended and Restated Bylaws of the Company, as amended through May 10, 2021;

 

D.copies of resolutions and unanimous written consents adopted by the Board of Directors of the Company (the “Board”) and the Compensation Committee of the Board (the “Compensation Committee”) relating to, among other things, approval of the amendment of the Plan and the filing of the Registration Statement;

 

E.copies of the reports of the inspector of election at the annual meetings of the stockholders of the Company held on May 10, 2022 and May 10, 2023, indicating the election of the members of the Board and the Compensation Committee who adopted the resolutions approving the amendment of the Plan and the filing of the Registration Statement and indicating that the amendment of the Plan was approved by the stockholders; and

 

Location Mailing Address Contact
555 17th Street, Suite 3200 P.O. Box 8749 p: 303.295.8000 | f: 303.295.8261
Denver, CO 80202-3921 Denver, CO 80201-8749 www.hollandhart.com

 

Holland & Hart LLP   Anchorage   Aspen   Billings   Boise   Boulder   Cheyenne   Denver   Jackson Hole   Las Vegas   Reno   Salt Lake City   Santa Fe   Washington, D.C.

 

 

 

 

  December 29, 2023
  Page 2

 

F.the certificate of good standing covering the Company, issued by the Secretary of State of the State of Delaware as of a recent date (the “Good Standing Certificate”).

 

We have relied upon the foregoing and upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We have assumed for purposes of this opinion: (a) information contained in documents reviewed by us is true, complete and correct; (b) the genuineness and authenticity of all signatures on original documents; (c) the accuracy and completeness of all documents delivered to us and the authenticity of all documents submitted to us as originals; (d) the conformity to originals of all documents submitted to us as copies; (e) the accuracy, completeness and authenticity of certificates of public officials; (f) the legal capacity of all natural persons; and (g) the due authorization, execution and delivery of all documents by parties other than the Company.

 

We are opining herein as to the Delaware General Corporation Law, as amended, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction, or as to any matters of municipal law or the laws of any local agencies within any state.

 

Based on the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares have been duly authorized for issuance pursuant to the Plan and, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.

 

We expressly disavow any obligation to advise you with respect to future changes in law or in our knowledge or as to any event or change of condition occurring subsequent to the date of this letter. This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act.

 

We consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

  Very truly yours,
   
  /s/ Holland & Hart LLP

 

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Westwater Resources, Inc., of our report dated March 6, 2023, relating to the consolidated financial statements of Westwater Resources, Inc. (the “Company”) (which report expresses an unqualified opinion and includes an explanatory paragraph relating to a going concern uncertainty), appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2022, filed with the Securities and Exchange Commission.

 

/s/ Moss Adams LLP

 

Denver, Colorado

December 29, 2023

 

 

 

 

Exhibit 107

Calculation of Filing Fee Tables

 

Form S-8 

(Form Type)

 

Westwater Resources, Inc. 

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered and Carry Forward Securities

 

Security
Type

Security
Class
Title

Fee
Calculation
Rule
Amount
Registered
(1)
Proposed
Maximum
Offering
Price
Per Share
Maximum
Aggregate
Offering
Price
Fee Rate Amount of
Registration
Fee
Equity

Westwater Resources, Inc. 2013 Omnibus Incentive Plan, as amended

Common Stock, par value $0.001 per share

Rule 457(c) and Rule 457(h) 1,500,000 (2) $0.60(3) $900,000.00 (3) $147.60 per $1.0 million $132.84
Total Offering Amounts       $132.84
Total Fee Offsets       --
Net Fee Due       $132.84

 

(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall also cover any additional shares of Common Stock of the Registrant as may become available for issuance pursuant to the Westwater Resources, Inc. 20123 Omnibus Incentive Plan, as amended (the “Plan”) by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without the receipt of consideration that results in an increase in the number of the Registrant’s outstanding shares of Common Stock.

 

(2) Represents the additional shares of Common Stock reserved for issuance under the Plan.

 

(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act. The offering price is based on the average of the high and low sales price per share of the Registrant’s Common Stock as reported on the NYSE American Stock Exchange on December 26, 2023.

 

 

 


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