As filed with the Securities and Exchange Commission on April 1, 2022

 

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

VISION MARINE TECHNOLOGIES INC.

(Exact name of registrant as specified in its charter)

 

     
Quebec   N/A

(State or Other Jurisdiction

of Incorporation)

 

  

(I.R.S. Employer

Identification Number)

 

 

730 Boulevard du Curé-Boivin
Boisbriand, Québec J7G 2A7, Canada

(Address, including zip code, of registrant’s principal executive offices)

Amended and Restated Share Option(s) Plan

(Full title of the plan)

 

Corporation Service Company
251 Little Falls Drive, Wilmington, DE 19808
Telephone: +1 302 636 5401

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

 

Copies to:

Rob Condon, Esq.

Dentons US LLP

1221 Avenue of the Americas

New York, New York 10020

(212) 768-6839

 

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   ¨
       
        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. ¨

 

 

 

 

 

PART I

INFORMATION REQUIRED IN THE PROSPECTUS

 

The documents containing the information specified by Part I, Items 1 and 2, of Form S-8 have been or will be delivered to participants in the plans covered by this Registration Statement, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) and the instructions to Form S-8. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of the Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a Prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

PART II

Item 3. Incorporation of Documents by Reference.

 

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:

 

1. The Company’s Annual Report on Form 20-F dated December 30, 2021 for the year ended August 31, 2021 filed with the Commission on December 30, 2021;  

 

2. The Current Reports on Form 6-K filed with the SEC on January 10, 2022, January 13, 2022, January 20, 2022 and February 11, 2022; and

 

3. The description of the Company’s common shares in the registration statement on Form 8-A filed with the SEC on November 20, 2020, including any amendments or reports filed for the purpose of updating such description.

 

Furthermore, all reports and other documents subsequently filed by us with the SEC pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part of this Registration Statement from the date of filing of such reports and documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission should not be deemed incorporated by reference in this Registration Statement. Any statement contained in any 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 in this Registration Statement 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 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.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable

 

 

 

 

Item 6. Indemnification of Directors and Officers.

 

Under the Business Corporations Act (Québec) (the “QBCA”), a corporation must indemnify a director or officer of the corporation, a former director or officer of the corporation or any other person who acts or acted at the corporation’s request as a director or officer of another group, against all costs, charges and expenses reasonably incurred in the exercise of their functions, including an amount paid to settle an action or satisfy a judgment, or arising from any investigative or other proceeding in which the person is involved if (1) the person acted with honesty and loyalty in the interest of the corporation or, as the case may be, in the interest of the other group for which the person acted as director or officer or in a similar capacity at the corporation’s request; and (2) in the case of a proceeding that is enforced by a monetary penalty, the person had reasonable grounds for believing that his or her conduct was lawful. The corporation must also advance moneys to such a person for the costs, charges and expenses of a proceeding referred to above. In the event that a court or any other competent authority judges that the conditions set out in (1) and (2) are not fulfilled, the corporation may not indemnify the person and the person must repay to the corporation any moneys advanced for such purposes. Furthermore, the corporation may not indemnify such person if the court determines that the person has committed an intentional or gross fault. In such a case, the person must repay to the corporation any moneys advanced. A corporation may also, with the approval of the court, in respect of an action by or on behalf of the corporation or other group as referred to above, against such a person, advance the necessary moneys to the person or indemnify the person against all costs, charges and expenses reasonably incurred by the person in connection with the action, if the person fulfills the conditions set out in this paragraph.

 

In accordance with and subject to the QBCA, the articles of the Company provide that the Company shall indemnify a director or officer of the Company, a former director or officer of the Company, or a person who acts or acted at the Company’s request as a director or officer of a body corporate of which the Company is or was a shareholder or creditor, and his or her heirs and legal representatives, to the extent permitted by the QBCA, as set forth above.

 

The Company maintains directors’ and officers’ liability insurance which insures the directors and officers of the Registrant and its subsidiaries against certain losses resulting from any wrongful act committed in their official capacities for which they become obligated to pay, to the extent permitted by applicable law.

 

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 Company has been informed that, in the opinion of the U.S. Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

See also the undertakings set out in response to Item 9 herein.

 

Item 7. Exemption from Registration Claimed.

 

Not Applicable.

 

Item 8. Exhibits.

 

See the Exhibit Index below for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.

 

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 the 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% 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) 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 the 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 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 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, 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.

 

 

 

 

INDEX TO EXHIBITS

 

                                       

Exhibit

Number

   Exhibit Description   Incorporated by Reference  
    Form     File No.     Exhibit     Filing Date  
             
4.1   Certificate of Incorporation     F-1       333-239777       3.1       July 9, 2020  
             
4.2   Certificate of Amendment     F-1       333-239777       3.2       July 9, 2020  
             
4.3   Amended and Restated Shares Option(s) Plan     F-1       333-239777       10.3       July 9, 2020  
             
4.4   Share Certificate – Common Shares     F-1/A       333-239777       4.1       September 22, 2020  
             
5.1*   Opinion of Dentons Canada LLP                                
                                     
23.1*   Consent of BDO Canada LLP                                
             
23.2*   Consent of Ernst & Young LLP, independent registered public accounting firm                                
             
23.3*   Consent of Dentons Canada LLP (included in Exhibit 5.1).                                
             
24.1*   Power of Attorney (contained on signature page hereto).                                
                                     
107*   Filing Fee Table                                

 

* Filed herewith.

 

 

 

 

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 the City of Boisbriand, Province of Québec, Canada, on this 1st day of April, 2022.

     
  VISION MARINE TECHNOLOGIES INC.
  (Registrant)
     
  By: /s/ Alexandre Mongeon
  Name:  Alexandre Mongeon
  Title: Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Alexandre Mongeon and Kulwant Sandher, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution, for him in any and all capacities, to sign the Registration Statement on Form S-8 of Vision Marine Technologies Inc., and any or all amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby and about the premises hereby ratifying and confirming all that said attorneys-in-fact and agent, proxy and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated, on April 1, 2022.

 

         

/s/ Alexandre Mongeon

Alexandre Mongeon

       Chief Executive Officer (Principal Executive Officer) and Director
     

/s/ Kulwant Sandher

Kulwant Sandher

       Chief Financial Officer (Principal Financial Officer)
     

/s/ Alan D. Gaines

Alan D. Gaines

       Chairman
     

/s/ Steve P. Barrenechea

Steve P. Barrenechea

       Director
     

/s/ Patrick Bobby

Patrick Bobby

       Head of Performance & Special Projects and Director
     

/s/ Renaud Cloutier

Renaud Cloutier

       Director
         
 
        

/s/ Luisa Ingargiola

Luisa Ingargiola

 

       Director
 
        

 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this Registration Statement on Form S-8, solely in the capacity of the duly authorized representative of the Registrant in the United States, on this 1st day of April, 2022.

 

     
  VISION MARINE TECHNOLOGIES INC.
     
  By: /s/ Alan D. Gaines
   

Name: Alan D. Gaines

Title: Chairman

 

 

 

 

Exhibit 5.1 

 

 

Dentons Canada LLP

1, Place Ville Marie, bureau 3900
Montréal (Québec) Canada H3B 4M7

 

dentons.com

 

1 April 2022

 

VISION MARINE TECHNOLOGIES INC.

730 Boulevard du Curé-Boivin

Boisbriand, Québec J7G 2A7

Canada

 

Attention: Board of Directors

 

Re:

Vision Marine Technologies Inc.

Registration Statement on Form S-8

 

Dear Sirs:

 

We have acted as special legal counsel to Vision Marine Technologies Inc., a Québec corporation (the “Company”), in connection with the filing of a Registration Statement on Form S-8 (as amended, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the issuance of (i) 1,709,121 common shares issuable upon exercise of options granted under the Company’s Amended and Restated Share Option(s) Plan (the “Plan”) and (ii) 55,831 common shares reserved for issuance upon the exercise of options that may be granted under the Plan.

 

This opinion letter is being furnished to the Company in accordance with the requirements of Item 601(b)(5) of Regulation S-K.

 

We undertake no responsibility to monitor the Company’s future compliance with applicable laws, rules or regulations of the Commission or other governmental body. In connection with this opinion, we have reviewed and relied upon the following:

 

(i)The Registration Statement;

 

(ii)The Company’s Articles of Incorporation (as amended) and by-laws;

 

(iii)The Plan; and

 

(iv)Such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion.

 

With respect to the foregoing documents, we have assumed:

 

(a)the authenticity of all records, documents, and instruments submitted to us as originals;

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1 April 2022

Page 2

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(b)the genuineness of all signatures on all agreements, instruments and other documents submitted to us;

 

(c)the legal capacity and authority of all persons or entities (other than the Company) executing all agreements, instruments or other documents submitted to us;

 

(d)the authenticity and the conformity to the originals of all records, documents, and instruments submitted to us as copies;

 

(e)that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for purposes of this opinion are true and correct; and

 

(f)the due authorization, execution and delivery of all agreements, instruments and other documents by all parties thereto (other than the due authorization, execution and delivery of each such agreement, instrument and document by the Company).

 

We have also obtained from officers of the Company certificates as to certain factual matters and, insofar as this opinion is based on matters of fact, we have relied on such certificates without independent investigation.

 

Our opinion is limited to the laws of the Province of Québec, including all applicable provisions of the Business Corporations Act (Québec) (the “Business Corporations Act”), and the federal laws of Canada applicable in the Province of Québec. We have not considered, and have not expressed any opinion with regard to, or as to the effect of, any other law, rule, or regulation, state or federal, applicable to the Company. In particular, we express no opinion as to United States federal securities laws.

 

Based upon the foregoing and in reliance thereon, and subject to the qualifications and limitations set forth herein, we are of the opinion that upon issuance of the common shares being registered under the Plan, in compliance with the terms of the Plan, including the receipt by the Company of the exercise price therefore for common shares issuable upon the exercise of options, such common shares will be legally issued as fully paid and non-assessable common shares of the Company.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our firm’s name wherever appearing in the Registration Statement. In giving this consent, we do not 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.

 

Yours truly,
   
  /s/ Dentons Canada LLP

 

 

 

 

 

Exhibit 23.1

 

Tel: 514 931 0841

Fax: 514 931 9491

www.bdo.ca

BDO Canada s.r.l. /S.E.N.C.R.L. /LLP

1000, rue De La Gauchetière O. Bureau 200

Montréal QC H3B 4W5 Canada

 

March 31, 2022

 

Vision Marine Technologies Inc.
730 Boulevard du Curé-Boivin
Boisbriand, Québec J7G 2A7

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 30, 2020 relating to the consolidated financial statements of Vision Marine Technologies Inc. (the Company) appearing in the Company’s Annual Report on Form 20-F for the year ended August 31, 2021.

 

Very truly yours,

 

/s/ BDO Canada s.r.l./S.E.N.C.R.L./LLP

 

BDO Canada s.r.l./S.E.N.C.R.L./LLP

 

 

 

Exhibit 23.2

 

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Stock Option Plan of Vision Marine Technologies Inc. of our report dated December 1, 2021 with respect to the consolidated statements of financial position at August 31, 2021 and the consolidated statements of comprehensive income (loss), changes in shareholders’ equity and cash flows for the year ended August 31, 2021 of Vision Marine Technologies Inc., included in its Annual Report (Form 20-F) filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

 

Montreal, Canada
March 31, 2022

 

 

 

 

Exhibit 107 

 

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

Vision Marine Technologies 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 Share		   Maximum
Aggregate
Offering Price		   Fee Rate   Amount of
Registration
Fee		 
Equity  Common Shares, without par value   457(h)   1,709,121(2)  $7.547(4)  $12,897,995.24    0.0000927   $1,195.64 
Equity  Common Shares, without par value   457(c) and 457(h)    55,831(3)  $6.38(5)  $356,201.78    0.0000927   $33.02 
Total Offering Amounts        $13,254,197.02        $1,228.66 
Total Fee Offsets                  $0 
Net Fee Due                  $1,228.66 

 

(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional common shares of the Registrant that become issuable under the Amended and Restated Share Option(s) Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding common shares.

 

(2) Represents common shares issuable upon exercise of options granted under the Plan. Such shares are issuable upon exercise of outstanding options with fixed prices. Pursuant to Rule 457(h), the aggregate offering price and the fee have been computed upon the basis of the price at which the options may be exercised.

 

(3) Represents common shares reserved for issuance upon the exercise of options that may be granted under the Plan.

 

(4) Pursuant to Rule 457(h) under the Securities Act, the registration fee is calculated based on the weighted average per-share exercise price. When initially set in Canadian Dollars (“CAD”), the amount is translated (solely for the purpose of calculating the registration fee) using the rate of CAD 1.2509 to US$1.00, the representative rate of exchange as of March 29, 2022, as published by the Bank of Canada.

 

(5)   Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee on the basis of the average of the high and low prices of the Registrant’s common shares as reported on the Nasdaq Capital Market on March 29, 2022.