FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
Ontario,
Canada
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98-0663504
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(Province or other jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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Title of Each Class of
Securities to be Registered |
Amount to
be Registered |
Proposed Maximum
Offering Price Per Share (2) |
Proposed Maximum
Aggregate Offering Price |
Amount of
Registration Fee (2) |
Common shares issuable under the Stock Option Plan
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2,211,494
(1)
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$7.48
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$16,541,975
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$2,004.89
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TOTAL
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2,211,494
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[--]
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$16,541,975
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$2,004.89
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(1)
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Represents the maximum number of common shares (the “Common Shares”) of Titan Medical Inc. (the “Registrant”)
issuable upon exercise of options under the Titan Medical Inc. Stock Option Plan, as amended and restated on March 14, 2018 (the “Amended and Restated Plan”).
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(2)
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The proposed maximum offering price per share and the registration fee were calculated in accordance with Rule
457(c) and (h) based on the average high and low prices for the Common Shares on February 8, 2019, as quoted on the NASDAQ Capital Market.
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(a)
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Our Registration Statement on Form 40-F, as filed with the SEC on June 11, 2018;
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(b)
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All other reports filed by the Registrant under Section 13(a) or 15(d) of the Securities Exchange Act of 1934
since December 31, 2017.
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(c)
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The description of the Common Shares contained in our Registration Statement on Form 40-F, as filed with the
SEC on June 11, 2018, including any amendment or report filed for the purpose of amending such description.
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Number
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Exhibit
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4.1 | Titan Medical Inc. Stock Option Plan |
5.1
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Opinion of Borden Ladner Gervais
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23.1 | Consent of Borden Ladner Gervais (Included in Exhibit 5.1) |
23.2
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Consent of BDO Canada
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24.1
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Power of Attorney (See Signature Pages)
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TITAN MEDICAL INC.
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/s/ Stephen Randall | ||
Name:
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Stephen Randall
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Title:
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Chief Financial Officer
(Principal Financial Officer)
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Signature
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Title
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Date
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/s/ David McNally |
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President, Chief Executive Officer
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February 11, 2019
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David McNally
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(Principal Executive Officer) and Director |
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/s/ Stephen Randall |
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Chief Financial Officer
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February 11, 2019
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Stephen Randall
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(Principal Financial Officer) and Director
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/s/ John E. Barker |
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Director and Chairman
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February 11, 2019
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John E. Barker
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/s/ John E. Schellhorn |
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Director
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February 11, 2019
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John E. Schellhorn
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/s/ Bruce G. Wolff |
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Director
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February 11, 2019
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Bruce G. Wolff
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/s/ Domenic Serafino |
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Director
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February 11, 2019 | |
Domenic Serafino
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/s/ David McNally |
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Authorized Representative
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February 11, 2019
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David McNally
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in the United States
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1. |
The Plan and Definitions
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(i) |
“
Black Out Period
” means the period during which the
Corporation has imposed trading restrictions on its insiders and certain other persons pursuant to its insider trading and disclosure policies;
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(ii) |
“
Board
” means the Board of Directors of the
Corporation;
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(iii) |
“
control
” and “
controlled
” shall have the meanings ascribed thereto in the
Securities
Act
(Ontario);
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(iv) |
“
Common Shares
” means the common shares in the capital
of the Corporation;
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(v) |
“
Disability
” means any disability with respect to a
Participant which the Board, in its sole and unfettered discretion, considers likely to prevent permanently the Participant from:
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(a) |
being employed or engaged by the Corporation, its subsidiaries or another
employer, in a position the same as or similar to that in which he was last employed or engaged by the Corporation or its subsidiaries; or
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(b) |
acting as a director or officer of the Corporation or its subsidiaries;
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(vi) |
“
Eligible Assignee
” means, in respect of a Participant,
that person’s spouse, minor children or minor grandchildren, Eligible Retirement Plan, Eligible Corporation or Eligible Family Trust;
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(vii) |
“
Eligible Corporation
” means, in respect of a
Participant, a corporation controlled by that person and all the shares of which are held by that person and/or Eligible Assignees of that person;
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(viii) |
“
Eligible Family Trust
” means, in respect of a
Participant, a trust of which the Eligible Person is a trustee and of which all beneficiaries are that person and/or Eligible Assignees;
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(ix) |
“
Eligible Retirement Plan
” means, in respect of a
Participant in Canada, a registered retirement savings plan or registered retirement income fund established by that person or under which the beneficiary or annuitant is that person, and in respect of a Participant in the United
States, a 401(k) plan or individual retirement account established by that person or under which the beneficiary or annuitant is that person;
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(x) |
“
Exchange
” means the Toronto Stock Exchange and/or such
other stock exchange upon which the Common Shares may become listed;
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(xi) |
“
Insider
” means a “reporting insider” (as such term is
defined in National Instrument 55-104 –
Insider Reporting Requirements and Exemptions
) and “associates” and “affiliates” thereof
(as such terms are defined in the rules of the Exchange or where they are not so defined, as such terms are defined in the
Securities Act
(Ontario));
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(xii) |
“
Insider Participation Limit
” means the number of
Common Shares:
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(a) |
issued to Insiders, within any one year period, and
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(b) |
issuable to Insiders, at any time,
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(xiii) |
“
Option Period
” shall mean the period during which an
Option may be exercised;
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(xiv) |
“
Options
” shall mean options to purchase Common Shares
granted under this Plan;
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(xv) |
“
Participant
” shall have the meaning ascribed to in
Section 1(a)6(a);
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(xvi) |
“
Service Providers
” persons or companies engaged by the
Corporation to provide services on a continuous basis for an initial, renewable or extended period of twelve months or more; and
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(xvii) |
"
VWAP
" means the volume weighted average trading price
of the Common Shares on the Exchange, calculated by dividing the total value by the total volume of Common Shares traded for the relevant period.
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2. |
Purpose
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3. |
Administration
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(a) |
This Plan shall be administered by the Board.
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(b) |
Subject to the terms and conditions set forth herein, the Board is authorized to provide for the granting, exercise and method of exercise of Options, all on
such terms (which may vary between Options granted from time to time) as it shall determine. In addition, the Board shall have the authority to: (i) construe and interpret this Plan and all option agreements entered into hereunder;
(ii) prescribe, amend and rescind rules and regulations relating to this Plan and (iii) make all other determinations necessary or advisable for the administration of this Plan. All determinations and interpretations made by the Board
shall be binding on all Participants (as hereinafter defined) and on their legal, personal representatives and beneficiaries and permitted assignees hereunder.
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(c) |
The Board’s authority to make amendments to this Plan without shareholder approval shall be in accordance with paragraph 18 below.
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(d) |
Notwithstanding the foregoing or any other provision contained herein, the Board shall have the right to delegate the administration and operation of this
Plan, in whole or in part, to a committee of the Board or to the Chief Executive Officer or any other officer of the Corporation. Whenever used herein, the term “Board” shall be deemed to include any committee or officer to which the
Board has, fully or partially, delegated responsibility and/or authority relating to the Plan or the administration and operation of this Plan pursuant to this Section 3.
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(e) |
Options shall be evidenced by (i) an agreement, signed on behalf of the Corporation and by the person to whom an Option is granted, which agreement shall be
in such form as the Board shall approve, or (ii) a written notice or other instrument, signed by the Corporation, setting forth the material attributes of the Options.
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(f) |
The Board shall not grant Options to residents of the United States unless such Options are registered under the United States Securities Act of 1933,
as amended
, (the “
U.S. Securities Act
”)
or are issued in compliance with an available exemption from the registration requirements of the U.S. Securities Act.
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4. |
Shares Subject to Plan
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(a) |
Subject to Section 15 below, the securities that may be acquired by Participants upon the exercise of Options shall be deemed to be fully authorized and
issued Common Shares. Whenever used herein, the term “Common Shares” shall be deemed to include any other securities that may be acquired by a Participant upon the exercise of an Option the terms of which have been modified in
accordance with Section 15 below.
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(b) |
The aggregate number of Common Shares reserved for issuance under this Plan, or any other plan of the Corporation, shall not, at the time of the stock option
grant, exceed ten percent (10%) of the total number of issued and outstanding Common Shares (calculated on a non-diluted basis) unless the Corporation receives the permission of the stock exchange or exchanges on which the Shares are
then listed to exceed such limit.
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(c) |
If any Option granted under this Plan shall expire or terminate for any reason without having been exercised in full, any un-purchased Common Shares to which
such Option relates shall be available for the purposes of the granting of Options under this Plan.
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5. |
Maintenance of Sufficient Capital
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(a) |
The Board may, in its discretion, select any of the following persons to participate in this Plan and to receive Options under this Plan:
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(i) |
directors of the Corporation;
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(ii) |
officers of the Corporation;
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(iii) |
employees of the Corporation; and
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(iv) |
Service Providers;
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(b) |
The Board may from time to time, in its discretion, grant an Option to any Participant, upon such terms, conditions and limitations as the Board may
determine, including the terms, conditions and limitations set forth herein, provided that Options granted to any Participant shall be approved by the shareholders of the Corporation if the rules of any stock exchange on which the
Shares are listed require such approval.
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7. |
Exercise Price
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8. |
Number of Optioned Shares
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9. |
Term
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(a) |
no Option shall be exercisable for a period exceeding ten (10) years from the date that the Option is granted unless the Corporation receives the required
approval of the stock exchange or exchanges on which the Common Shares are then listed and as specifically provided by the Board and as permitted under the rules of any stock exchange or exchanges on which the Shares are then listed;
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(b) |
no Option in respect of which shareholder approval is required under the rules of any stock exchange or exchanges on which the Common Shares are then listed
shall be exercisable until such time as the Option has been approved by the shareholders of the Corporation;
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(c) |
the Board may, subject to the receipt of any necessary regulatory approvals, in its sole discretion, accelerate the time at which any Option may be exercised,
in whole or in part; and
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(d) |
notwithstanding the expiration date applicable to any Option, if an Option would otherwise expire during a Black Out Period or during the period of ten
business days immediately following the last day of a Black Out Period, the expiration date of such Option shall be the tenth business day following the expiration of the Black Out Period, provided that in no event shall the period
during which said Option is exercisable be extended beyond 10 years from the date such Option is granted to the Participant.
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10. |
Method of Exercise of Option
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(a) |
Except as set forth in Sections 11 and 12 below or as otherwise determined by the Board, no Option may be exercised unless the holder of such Option is, at
the time the Option is exercised, a director, officer, employee or Service Provider of the Corporation or an Eligible Assignee.
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(b) |
Options that are otherwise exercisable in accordance with the terms thereof may be exercised in whole or in part from time to time.
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(c) |
Any Participant (or his legal, personal representative) or Eligible Assignee wishing to exercise an Option shall deliver to the Corporation, at its principal
office in the City of Toronto, Ontario:
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(i) |
a written notice expressing the intention of such Participant (or his legal, personal representative) or Eligible Assignee to exercise the Option and
specifying the number of Common Shares in respect of which the Option is exercised; and
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(ii) |
a cash payment, certified cheque or bank draft, representing the full purchase price of the Common Shares in respect of which the Option is exercised.
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(d) |
Upon the exercise of an Option as aforesaid, the Corporation shall use reasonable efforts to forthwith deliver, or cause the registrar and transfer agent of
the Common Shares to deliver, to the relevant Participant (or his legal, personal representative) or to the order thereof, a certificate representing the aggregate number of fully paid and non-assessable Common Shares in respect of
which the Option has been duly exercised.
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(e) |
No Option holder who is resident in the United States may exercise Options unless the Common Shares to be issued upon exercise are registered under the U.S.
Securities Act or are issued in compliance with an available exemption from the registration requirements of the U.S. Securities Act.
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(f) |
The Corporation shall be entitled to take all steps necessary to ensure that sufficient funds are provided to the Corporation by the Participant or Eligible
Assignee to enable the Corporation to satisfy all withholding tax and other source deduction requirements in respect of the exercise of an Option by the Participant or Eligible Assignee that are imposed by any applicable law, including:
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(i) |
deducting and withholding any amount from any payments made to the Participant or Eligible Assignee, whether hereunder or otherwise;
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(iii) |
requiring that the Participant or Eligible Assignee enter into a same-day sale in respect of some or all of the Common Shares received on the exercise of an
Option, with a portion of the sale proceeds being remitted directly to the Corporation.
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11. |
Ceasing to be a Director, Officer, Employee or Service Provider
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(a) |
if a Participant is dismissed for cause as a director, officer or employee of, or Service Provider to, the Corporation or one of its subsidiaries, all
unexercised Option rights of that Participant or such Participant’s Eligible Assignee (where the Participant has assigned the Option to such Eligible Assignee) under this Plan shall immediately become terminated and shall lapse
notwithstanding the original term of the Option granted to such Participant under this Plan; and
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(b) |
if any Participant shall cease to hold the position or positions of director, officer, employee or Service Provider of the Corporation (as the case may be) as
a result of (i) retirement at the normal retirement age prescribed by the Corporation, if any; (ii) resignation; or (iii) termination other than for cause; such Participant or such Participant’s Eligible Assignee (where the Participant
has assigned the Option to such Eligible Assignee) shall have the right for a period to be determined by the Board not exceeding 90 days, or such longer period determined by the Board at its discretion in respect of a specific Option on
a date after such Option is granted notwithstanding an earlier determination by the Board, from the date of the Participant ceasing to be a director, officer, employee or Service Provider to exercise his Options under this Plan with
respect to all Common Shares issuable thereunder to the extent that the Options were exercisable on the date of such Participant ceasing to hold any such position with the Corporation, or until the normal expiry date of the Option,
whichever is earlier. Upon the expiration of such period, all unexercised Option rights of that Participant and any Eligible Assignee thereof under this Plan shall immediately become terminated and shall lapse notwithstanding the
original term of the Option granted to such Participant under this Plan.
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12. |
Death or Disability of a Participant
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(b) |
to the extent that he was entitled to exercise the Option as at the date of his death.
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13. |
Rights of Participants
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14. |
Proceeds from Exercise of Options
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15. |
Adjustments
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(a) |
The number of Common Shares subject to the Plan shall be increased or decreased proportionately in the event of the subdivision or consolidation of the
outstanding Common Shares of the Corporation, and in any such event a corresponding adjustment shall be made to the number of Common Shares deliverable upon the exercise of any Option granted prior to such event without any change in
the total price applicable to the unexercised portion of the Option, but with a corresponding adjustment in the price for each Common Share that may be acquired upon the exercise of the Option. In case the Corporation is reorganized or
merged or consolidated or amalgamated with another corporation, appropriate provisions shall be made for the continuance of the Options outstanding under this Plan and to prevent any dilution or enlargement of the same.
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(b) |
Adjustments under this Section 15 shall be made by the Board, whose determination as to what adjustments shall be made, and the extent thereof, shall be
final, binding and conclusive. No fractional Common Shares shall be issued upon the exercise of an Option following the making of any such adjustment.
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16. |
Change of Control
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(a) |
the acceptance by the holders of Common Shares of the Corporation, representing in the aggregate, more than 50 percent (50%) of all issued Common Shares of
the Corporation, of any offer, whether by way of a takeover bid or otherwise, for all or any of the outstanding Common Shares of the Corporation; or
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(b) |
the acquisition, by whatever means, by a person (or two or more persons who, in such acquisition, have acted jointly or in concert or intend to exercise
jointly or in concert any voting rights attaching to the Common Shares acquired), directly or indirectly, of beneficial ownership of such number of Common Shares or rights to Common Shares of the Corporation, which together with such
person’s then owned Common Shares and rights to Common Shares, if any, represent (assuming the full exercise of such rights to voting securities) more than fifty percent (50%) of the combined voting rights of the Corporation’s then
outstanding Common Shares; or
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(c) |
the entering into of any agreement by the Corporation to merge, consolidate, amalgamate, initiate an arrangement or be absorbed by or into another
corporation; or
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(d) |
the passing of a resolution by the Board or shareholders of the Corporation to substantially liquidate the assets or wind-up the Corporation’s business or
significantly rearrange its affairs in one or more transactions or series of transactions or the commencement of proceedings for such a liquidation, winding-up or re-arrangement (except where such re-arrangement is part of a bona fide
reorganization of the Corporation in circumstances where the business of the Corporation is continued and where the shareholdings remain substantially the same following the re-arrangement); or
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(e) |
individuals who were members of the Board immediately prior to a meeting of the shareholders of the Corporation involving a contest for or an item of business
relating to the election of directors, not constituting a majority of the Board following such election.
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17. |
Transferability
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(a) |
Subject to sub-section 17(b), all Options and all benefits, interests and rights accruing to any Participant (or such Participant’s Eligible Assignee) in
accordance with the terms and conditions of this Plan may only be exercised by the Participant (or such Participant’s Eligible Assignee) during the lifetime of a Participant and shall be non-transferrable and non-assignable
and may not be made subject to execution, attachment or similar process,
save and except
with the prior written permission of the Board, or
in the event of the death of a Participant, by the person or persons to whom the Participant’s rights under the Option pass by the Participant’s will or applicable
laws of descent and distribution.
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(b) |
Notwithstanding section 17(a) but subject to obtaining any necessary approvals in advance from the Corporation and from each Exchange on which the Common
Shares are listed and which reserves the right to approve such assignments, a Participant may assign Options granted to him under the Plan to Eligible Assignees and Eligible Assignees may, in turn, assign such Options to the original
Participant or to other Eligible Assignees of the original Participant. Notwithstanding any such assignment, (i) all Options granted under the Plan shall be deemed to be the Option of the original Participant for the purposes of
applying the rules and policies of the Exchange on which the Common Shares are listed and (ii) the Corporation shall continue to treat the original Participant as the holder of the assigned Options unless and until such time as the
Corporation is provided with notice in writing from the original Participant or its legal representative and the Eligible Assignee, together with such other documentation as the Corporation may require, confirming that the assignee is
an Eligible Assignee.
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(a) |
minor changes of a “housekeeping nature”;
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(b) |
amending Options under this Plan, including with respect to the Option Period (provided that the period during which an Option is exercisable does not exceed
10 years from the date the Option is granted and that such Option is not held by an Insider), vesting period, exercise method and frequency, subscription price (provided that such Option is not held by an Insider) and method of
determining the subscription price, assignability and effect of termination of a Participant’s employment or cessation of the Participant’s directorship;
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(c) |
changing the class of Participants eligible to participate under this Plan;
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(d) |
accelerating the vesting of any Option;
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(e) |
extending the expiration date of any Option provided that the period during which an option is exercisable does not exceed 10 years from the date the Option
is granted and provided that such Option is not held by an Insider, and where such Option is held by an Insider in such case, shareholder approval shall be obtained in connection with the extension;
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(f) |
changing the terms and conditions of any financial assistance which may be provided by the Corporation to Participants to facilitate the purchase of Common
Shares under this Plan; and
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(g) |
adding a cashless exercise feature, payable in cash or securities, which provides for a full deduction of the number of underlying Common Shares from this
Plan reserve.
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19. |
Necessary Approvals
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20. |
Stock Exchange Rules
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21. |
Market Fluctuations
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22. |
Right to Issue Other Shares
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23. |
Notice
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24. |
Gender
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25. |
Interpretation
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26. |
Effective Date of Plan
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Borden Ladner Gervais LLP
Bay Adelaide Centre, East Tower
22 Adelaide Street West
Toronto, ON, Canada M5H 4E3
T
416.367.6000
F
416.367.6749
blg.com
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Re:
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Titan Medical Inc. – Registration
Statement on Form S-8
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Tel: 416 865 0200
Fax: 416 865 0887
www.bdo.ca
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BDO Canada LLP
222 Bay Street
Suite 2200, PO Box 131
Toronto ON M5K 1H1 Canada
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