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
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
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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)
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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
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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.
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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.
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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;
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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.
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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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