S-8 1 dp139838_s8-def.htm FORM S-8

 

 

As filed with the Securities and Exchange Commission on October 30, 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

______________________

 

GATOS SILVER, INC. 

(Exact name of registrant as specified in its charter)

 

Delaware   27-2654848
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer
Identification No.)
 

8400 E. Crescent Parkway, Suite 600

Greenwood Village, CO 80111

Telephone: (303) 784-5350

 

 
(Address of Principal Executive Offices, Including Zip Code)
 

______________________

 

Sunshine Silver Mining & Refining Corporation Non-Qualified Deferred Compensation Plan for Senior Executives and Outside Directors

 

(Full title of the plan)

     
 

Stephen Orr

Chief Executive Officer and Director

8400 E. Crescent Parkway, Suite 600

Greenwood Village, CO 80111

Telephone: (303) 784-5350

 
 
(Name, address and telephone number, including area code, of agent for service)

______________________

 

With a copy to:
 

Richard D. Truesdell, Jr.

Derek Dostal

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

(212) 450-4000

 

 

 

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  ☐ (Do not check if a smaller reporting company) Smaller reporting company ☒
   
  Emerging growth company ☒

  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for ☒ complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered Amount to be Registered Proposed Maximum Offering Price per Obligation or Per Share, As Applicable Proposed Maximum Aggregate Offering Price (3) Amount of
Registration Fee (4)
Sunshine Silver Mining & Refining Corporation Non-Qualified Deferred Compensation Plan for Senior Executives and Outside Directors (1) $1,000,000 100% $1,000,000 $109.10
Common Stock (2) 250,000 $6.27(3) $1,567,500 $171.02
Total       $280.12

 

(1)The deferred compensation obligations (the “Deferred Compensation Obligations”) to which this Registration Statement on Form S-8 (this “Registration Statement”) relates arise under the Sunshine Silver Mining & Refining Corporation Non-Qqualified Deferred Compensation Plan for Senior Executives and Outside Directors, as amended and restated (the “Deferred Compensation Plan”), and is a unsecured general obligations of Gatos Silver, Inc. (the “Registrant”) to pay up to $1,000,000 of deferred compensation from time to time in the future pursuant to compensation deferral elections made by participants in the Deferred Compensation Plan in accordance with the terms of the Deferred Compensation Plan.

 

(2)Represents common stock $0.001 par value per share (“Common Stock”) issuable under the Deferred Compensation Plan in connection with the future settlement of Deferred Compensation Obligations.

 

(3)Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the “Securities Act”) on the basis of the average of the high and low prices of the Registrant’s Common Stock on October 28, 2020.

 

(4)Rounded up to the nearest penny.

 

 

 

 

 

 

PART I

 

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Form S-8 instructions. The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule 428(b)(1).

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents are incorporated herein by reference:

 

(a)       The Registrant’s prospectus, dated October 29, 2020, filed with the SEC pursuant to Rule 424(b) under the Securities Act, in connection with the Company’s Registration Statement on Form S-1 (Registration No. 333-249224), as originally filed by the Company on October 6, 2020, and subsequently amended;

 

(b)       All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Registrant’s Registration Statement on Form S-1 referred to in clause (a) above; and

 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, are incorporated by reference in this Registration Statement and are a part hereof from the date of filing of such documents; except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under current Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions. 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 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

The following description of the Deferred Compensation Obligations under the Deferred Compensation Plan is qualified by reference to the Deferred Compensation Plan, which is included as exhibits to this Registration Statement. For purposes of this Item 4, the term “Company” shall mean the Registrant. Capitalized terms used in this Item 4 and not otherwise defined in this Registration Statement shall have the respective meanings attributed to such terms in the Deferred Compensation Plan.

 

Under the Deferred Compensation Plan, the Company will provide Executives and Non-Employee Directors with the opportunity to elect to defer a portion of his or her cash compensation, equity compensation awards other than from the exercise of stock options, annual retainers or meeting compensation awards (collectively, “Deferral Compensation”). A Participant may elect to defer up to 100% of his or eligible Deferral Compensation in a Plan Year. Amounts deferred by a Participant under the Plan are credited to a bookkeeping account denominated in cash or shares of Common Stock for the participant. All amounts credited to Participant’s Deferred Compensation Accounts will be credited with investment earnings (e.g., money market account rates for cash deferrals and dividends for stock deferrals). The Deferred Compensation Obligations incurred by the Company under the applicable Deferred Compensation Plan will be unsecured general obligations of the Company to pay the compensation deferred in accordance with the terms of the Deferred Compensation Plan and will rank equally with other unsecured and unsubordinated indebtedness of the Company.

 

 

 

 

Cash and/or shares of Common Stock of the Company from the Participant’s Deferred Compensation Account may be contributed by the Company to a trust. Any cash contributions or shares of Common Stock of the Company deposited into such trust shall remain subject to the claims of the general creditors of the Company as if such funds were general assets of the Company. Each Participant will receive a distribution upon the earliest of (i) the date designated by the Participant in his or her Deferral Election, (ii) the date of the Participant’s retirement from the Company or other termination of active service as a Non-Employee Director or Executive (as applicable) or (iii) the date of the Participant’s death. Each Participant is permitted to specify by election the method of distribution of any amount credited to his or her Deferred Compensation Account either in (i) a single lump distribution of cash or shares of Common Stock or (ii) annual installment of cash or shares of Common Stock.

 

Each Participant will be a general unsecured creditor of the Company with respect to all of the Company’s Deferred Compensation Obligations to the Participant under the Deferred Compensation Plan, and will not have a secured or preferred position with respect to his or her Deferred Compensation Account. No amount payable to a Participant or a beneficiary under the Plan will, except as otherwise specifically provided by law, be  assigned, transferred, encumbered, or otherwise disposed of by the Participant until the same shall be delivered to such Participant; however, the Committee is entitled to recoup compensation.

 

 The Committee may amend, modify, suspend or terminate this Plan for the purpose of meeting or addressing any changes in legal requirements or for any other purpose permitted by law, except that (i) no amendment or alteration that would adversely affect the rights of any Participant under any benefit previously granted to such Participant shall be made without the consent of such Participant, provided, however, that no amendment that results in a change in the tax consequences of a benefit shall require the consent of the Participant; and (ii) no amendment or alteration shall be effective prior to its approval by the shareholders of the Company to the extent such approval is required by applicable legal or tax requirements or the requirements of the securities exchange on which the Company’s stock is listed. 

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law, or DGCL, provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The Registrant’s bylaws provides for indemnification by the Registrant of its directors, officers and employees to the fullest extent permitted by the DGCL. The Registrant has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s certificate of incorporation and bylaws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the Registrant for which indemnification is sought.

 

 

 

 

Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant’s certificate of incorporation provides for such limitation of liability.

 

The Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit Number  
4.1 Form of Amended and Restated Certificate of Incorporation of Gatos Silver Inc. (incorporated herein by reference to Exhibit 3.1 to Gatos Silver Inc.’s Amendment No. 5 to Form S-1, filed on October  21, 2020 (Registration No. 333-249224)))
4.2 Form Amended and Restated By-Laws of Gatos Silver Inc. (incorporated herein by reference to Exhibit 3.2 to Gatos Silver Inc.’s Amendment No. 5 to Form S-1, filed on October  21, 2020 (Registration No. 333-249224))
5.1 Opinion of Davis Polk & Wardwell LLP (re: validity of Deferred Compensation Obligations) (filed herewith)
5.2 Opinion of Davis Polk & Wardwell LLP (re: ERISA compliance) (filed herewith)
23.1 Consent of KPMG LLP - Sunshine Silver Mining & Refining Corporation (filed herewith)
23.2 Consent of KPMG LLP - Los Gatos Joint Venture (filed herewith)
23.3 Consent of Davis Polk & Wardwell LLP (included in Exhibits 5.1 and 5.2)
24.1 Power of Attorney (included in signature page hereof)
99.1 Sunshine Silver Mining & Refining Corporation Nonqualified Deferred Compensation Plan for Senior Executives and Outside Directors (incorporated herein by reference to Exhibit 10.14.1 to Gatos Silver Inc.’s Amendment No. 1 to Form S-1, filed on October 6, 2020 (Registration No. 333-249224))

 

 

 

 

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 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 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this registration statement; and

 

(iii)       To include any material information with respect to the Plan 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 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 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 (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 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 provisions referenced in Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 hereunder, 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 of 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 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 Denver, Colorado on the 30th day of October, 2020.

 

  GATOS SILVER, INC.
   
   
  By:  /s/ Stephen Orr           
    Name: Stephen Orr
    Title: Chief Executive Officer

 

 

 

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Stephen Orr, Roger Johnson Adam Dubas and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

Title

Date

     

/s/ Stephen Orr

   
Stephen Orr

Chief Executive Officer and Director

(principal executive officer)

October 30, 2020
     

/s/ Roger Johnson

   
Roger Johnson

Chief Operating Officer and Chief Financial Officer

(principal financial officer and

principal accounting officer)

October 30, 2020
     

/s/ Janice Stairs

   
Janice Stairs Chair of the Board of Directors October 30, 2020
     

/s/ David Peat

   
David Peat Director October 30, 2020
     

/s/ Charles Hansard

   
Charles Hansard Director October 30, 2020
     

/s/ Ali Erfan

   
Ali Erfan Director October 30, 2020
     

/s/ Igor Gonzales

   
Igor Gonzales Director October 30, 2020
     

/s/ Karl Hanneman

   
Karl Hanneman Director October 30, 2020
     

/s/ Igor Levental

   
Igor Levental Director October 30, 2020