UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December
29
,
2017
ENERGY FUELS INC.
(Exact name of
registrant as specified in its charter)
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Ontario
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001-36204
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98-1067994
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(State or other jurisdiction of
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(Commission File Number)
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(I.R.S. Employer
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incorporation)
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Identification No.)
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225 Union Blvd., Suite 600
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Lakewood, Colorado
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80228
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(Address of principal executive offices)
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(Zip Code)
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(303) 974-2140
(Registrant’s telephone number,
including area code)
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to
Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a -12)
[ ] Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d -2(b))
[ ] Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e -4(c))
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of
this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b -2
of this chapter).
Emerging growth company [X]
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 13(a) of the Exchange Act. [ ]
Item 1.01. Entry into a Material Definitive Agreement.
On December 29, 2017, the Company entered into Amendment No. 1
to the Sales Agreement (the “Amendment”) with Cantor Fitzgerald & Co.
(“Cantor”).
The Amendment amends the Sales Agreement entered into by the
Company and Cantor on December 23, 2016, as further described in the Company’s
Form 8-K filed with the United States Securities and Exchange Commission on
December 23, 2016.
Pursuant to the Sales Agreement, as amended by the Amendment
(the “Amended Sales Agreement”), the Company may sell from time to time, at its
option, the Company’s common shares, through Cantor, as sales agent. Pursuant to
the Amended Sales Agreement, sales of the common shares, if any, will be made
under the Company’s previously filed and effective Registration Statement on
Form S-3 (File No. 333-210782), by any method that is deemed to be an “at the
market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933,
as amended (the “Securities Act”).
The Amendment is attached to this Current Report on Form 8-K as
Exhibit 1.1 and is incorporated herein by reference. The foregoing description
of the material terms of the Amendment does not purport to be complete and is
qualified in its entirety by reference to the exhibit attached hereto.
This Current Report on Form 8-K shall not constitute an offer
to sell or the solicitation of an offer to buy the common shares discussed
herein, nor shall there be any offer, solicitation, or sale of the common shares
in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such
jurisdiction.
Item 8.01. Other Events.
In connection with entering into the Amendment, the Company
filed a prospectus supplement to its effective U.S. registration statement on
Form S-3 in order to renew its ‘at-the-market’ program (“ATM”). Pursuant to the
prospectus supplement, the Company may, at its discretion from time to time,
sell up to $30 million of common shares. The Company has raised approximately $14.2 million during 2017 under its current $20 million ATM with another $5.8 million left until completion.
Item 9.01. Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Company has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ENERGY FUELS
INC.
(Registrant)
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Dated: December 29, 2017
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By:
/s/
David C. Frydenlund
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David C. Frydenlund
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Senior Vice President, General Counsel and
Corporate
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Secretary
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ENERGY FUELS INC.
CONTROLLED EQUITY
OFFERING
SM
AMENDMENT NO. 1 TO
SALES AGREEMENT
December 29, 2017
Cantor Fitzgerald & Co.
499 Park Avenue
New York,
NY 10022
Ladies and Gentlemen:
Reference is made to the Sales Agreement, dated December 23,
2016, including the Schedules thereto (the “
Sales Agreement
”), between
Cantor Fitzgerald & Co. (“
CF&Co
”) and Energy Fuels Inc., a
company continued under the
Business Corporations Act
(Ontario) (the
“
Company
”), pursuant to which the Company agreed to sell through
CF&Co, as sales agent, common shares, no par value, of the Company. All
capitalized terms used in this Amendment No. 1 to Sales Agreement between
CF&Co and the Company (this “
Amendment
”) and not otherwise defined
herein shall have the respective meanings assigned to such terms in the Sales
Agreement. CF&Co and the Company agree as follows:
A.
Amendments to Sales
Agreement
. The Sales Agreement is amended as follows:
1. The first paragraph of Section 1 of
the Sales Agreement is hereby amended and restated as follows:
The Company agrees that, from time to time on or after December
29, 2017 and during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may issue and sell through the Agent, common
shares (the “
Placement Shares
”) of the Company, no par value (the
“
Common Shares)
;
provided
,
however
, that in no event
shall the Company issue or sell through the Agent such number or dollar amount
of Placement Shares that would (a) exceed the number or dollar amount of Common
Shares registered on the effective Registration Statement (defined below)
pursuant to which the offering is being made, (b) exceed the number of
authorized but unissued Common Shares (less Common Shares issuable upon
exercise, conversion or exchange of any outstanding securities of the Company or
otherwise reserved from the Company’s authorized capital stock), (c) exceed the
number or dollar amount of Common Shares permitted to be sold under Form S-3
(including General Instruction I.B.6 thereof, if applicable) or (d) exceed the
number or dollar amount of Common Shares for which the Company has filed a
Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the
“
Maximum Amount
”). Such amount of Placement Shares available for
offer and sale are in addition to any offers and sales of Placement Shares that
have been made prior to the date hereof or may be made on or after to the date
hereof under the Prospectus Supplement filed by the Company on December 23,
2016. Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitations set forth in this
Section
1
on the amount of Placement Shares issued and sold under this Agreement
shall be the sole responsibility of the Company and that Agent shall have no
obligation in connection with such compliance. The issuance and sale of
Placement Shares through the Agent will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and declared effective by the
United States Securities and Exchange Commission (the “
Commission
”) on
May 5, 2016 (the “
Effective Date
”), although nothing in this
Agreement shall be construed as requiring the Company to use the Registration
Statement to issue Common Shares.
2. Schedule 1 is amended by adding “as
amended on December 29, 2017” immediately after “December 23, 2016”.
B.
Prospectus Supplement
. The Company shall file a
Prospectus Supplement pursuant to Rule 424(b) of the Securities Act reflecting
this Amendment within two Business Days of the date hereof.
C.
No Other Amendments
. Except as set forth in
Part
A
above, all the terms and provisions of the Sales Agreement shall continue
in full force and effect.
D.
Counterparts
. This Amendment may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an
executed Amendment by one party to the other may be made by facsimile or email
transmission.
E.
Governing Law
. This Amendment shall be governed by,
and construed in accordance with, the internal laws of the State of New York
without regard to the principles of conflicts of laws.
[Remainder of page intentionally left blank.]
-2-
If the foregoing correctly sets forth the understanding between
us, please so indicate in the space provided below for that purpose.
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Very truly yours,
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ENERGY FUELS INC.
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By: /s/
Stephen P. Antony
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Name: Stephen P. Antony
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Title: Chief Executive Officer
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ACCEPTED as of the date first above written:
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CANTOR FITZGERALD & CO.
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By: /s/
Jeffrey Lumby
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Name: Jeffrey Lumby
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Title: Senior Managing Director
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December 29, 2017
Energy Fuels Inc.
80 Richmond Street West, 18
th
Floor
Toronto, Ontario
Canada M5H 2A4
Dear Sirs/Mesdames:
Re: Energy Fuels Inc. – Controlled Equity Offering of Common Shares
We have acted as Ontario counsel to Energy Fuels Inc. (the “
Company
”). We refer to (i) the Company’s registration statement on Form S-3 (the "
Registration Statement
") declared effective on May 5, 2016 by the
Securities and Exchange Commission (the "
SEC
") under the Securities Act of 1933, as amended (the "
Securities Act
"), including the Base Prospectus included therein (the "
Base
Prospectus
") and (ii) the prospectus supplement
to the Base Prospectus, dated December 29, 2017 filed with the SEC under Rule 424(b) under the Securities Act relating to common shares of the Company (“
Common Shares
”)
to be sold by the Agent (as defined below) in the
United States (the “
Prospectus Supplement
”, and together with the Base Prospectus, the “
Prospectus
”).
We are furnishing this opinion at your request in connection with the Prospectus which was filed in connection with the offer and sale of up to an aggregate of US$30,000,000 of Common Shares (the “
Shares
”) by the Company
pursuant to the terms of a Controlled Equity Offering
SM
sales agreement dated December 23, 2016 as amended on December 29, 2017 (as amended, the “
Sales Agreement
”) between the Company and Cantor Fitzgerald & Co., as
agent (the “
Agent
”).
We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of
all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies or facsimile transmissions. We have also assumed the legal capacity for all purposes
relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the legal,
valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of public officials. We have not undertaken any independent investigation
to verify the accuracy or completeness of any of the foregoing assumptions.
For purposes of this opinion letter, we have also assumed that the Shares will be offered, issued and sold in compliance with applicable United States federal and state securities laws and in the manner stated in the Registration Statement, the
Prospectus and the Sales Agreement.
Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued in accordance with the provisions of the Sales Agreement, including the receipt by the Company of the consideration therefor, will be validly issued as fully
paid and non-assessable shares of the Company.
The foregoing opinion is limited to the laws of the Province of Ontario and the federal laws of Canada applicable therein on the date of this opinion, and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic
or foreign.
The opinion expressed in this letter is for the sole benefit of the Company in connection with the Prospectus. This opinion may not be relied upon by, disclosed to, or filed with, any other person without our prior written consent. Notwithstanding
the foregoing, we hereby consent to the filing of this opinion with the SEC as an exhibit to the Current Report on Form 8-K to be filed by the Company in connection with the offering. We also hereby consent to the use of our name under the heading
“Legal Matters” in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC promulgated
thereunder.
This opinion is expressed as of the date hereof and unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Very truly yours,
/s/ Borden Ladner Gervais LLP
Date: December 29, 2017
CONSENT OF MARK B. MATHISEN
I, Mark B. Mathisen, consent to the inclusion in the Prospectus
Supplement of Energy Fuels Inc. (the “Company”) being filed with the United
States Securities and Exchange Commission (the “SEC”) on December 29, 2017, of
technical disclosure regarding the Canyon Mine (the “Technical Information”) and
of references to my name with respect to the Technical Information and the
technical report entitled “Technical Report on the Canyon Mine, Coconino County,
Arizona, U.S.A.” dated October 6, 2017.
I also consent to the filing of this consent under cover of
Form 8-K with the SEC and of the incorporation by reference of this consent and
the Technical Information into the Company’s Registration Statement on Form S-3
(No. 333-210782), as amended, filed with the SEC.
(Signed)
“Mark B.
Mathisen”
Mark B. Mathisen, CPG
Principal Geologist
Date: December 29, 2017
CONSENT OF VALERIE WILSON
I, Valerie Wilson, consent to the inclusion in the Prospectus
Supplement of Energy Fuels Inc. (the “Company”) being filed with the United
States Securities and Exchange Commission (the “SEC”) on December 29, 2017, of
technical disclosure regarding the Canyon Mine (the “Technical Information”) and
of references to my name with respect to the Technical Information and the
technical report entitled “Technical Report on the Canyon Mine, Coconino County,
Arizona, U.S.A.” dated October 6, 2017.
I also consent to the filing of this consent under cover of
Form 8-K with the SEC and of the incorporation by reference of this consent and
the Technical Information into the Company’s Registration Statement on Form S-3
(No. 333-210782), as amended, filed with the SEC.
(Signed)
“Valerie
Wilson”
Valerie Wilson, P.Geo.
CONSENT OF JEFFREY L. WOODS
I consent to the inclusion in the Prospectus Supplement of
Energy Fuels Inc. (the “Company”) being filed with the United States Securities
and Exchange Commission (the “SEC”) on December 29, 2017, of technical
disclosure regarding the Canyon Mine (the “Technical Information”) and of
references to my name with respect to the Technical Information and the
technical report entitled “Technical Report on the Canyon Mine, Coconino County,
Arizona, U.S.A.” dated October 6, 2017.
I also consent to the filing of this consent under cover of
Form 8-K with the SEC and of the incorporation by reference of this consent and
the Technical Information into the Company’s Registration Statement on Form S-3
(No. 333-210782), as amended, filed with the SEC.
/s/ Jeffrey L.
Woods
Jeffrey L. Woods
Date: December 29, 2017
Date: December 29, 2017
CONSENT OF ROSCOE POSTLE ASSOCIATES INC.
Roscoe Postle Associates Inc. “RPA” consent to the inclusion in
the Prospectus Supplement of Energy Fuels Inc. (the “Company”) being filed with
the United States Securities and Exchange Commission (the “SEC”) on December 29,
2017, of technical disclosure regarding the Canyon Mine (the “Technical
Information”) and of references to our name with respect to the Technical
Information and the technical report entitled “Technical Report on the Canyon
Mine, Coconino County, Arizona, U.S.A.” dated October 6, 2017.
RPA also consent to the filing of this consent under cover of
Form 8-K with the SEC and of the incorporation by reference of this consent and
the Technical Information into the Company’s Registration Statement on Form S-3
(No. 333-210782), as amended, filed with the SEC.
Roscoe Postle Associates Inc.
Per: (Signed)
“Deborah
McCombe”
Deborah McCombe, P.Geo.
President & CEO