As filed with the Securities and Exchange Commission on November 4, 2021

Registration No. 333-          


UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

TUCOWS INC.

(Exact name of registrant as specified in its charter)

 

Pennsylvania

 

23-2707366

(State or other jurisdiction of incorporation or
organization)

 

(I.R.S. Employer Identification No.)

 

96 Mowat Avenue

   

Toronto, Ontario, Canada

 

M6K 3M1

(Address of Principal Executive Offices)

 

(Zip Code)

 

Tucows (Delaware) Inc. 401(k) Plan

The Deferred Profit Sharing Plan for Employees of Tucows.com Co.

(Full title of the plans)

 

Elliot Noss

President and Chief Executive Officer

Tucows Inc.

96 Mowat Avenue

Toronto, Ontario, Canada M6K 3M1

(Name and address of agent for service)

 

(416) 535-0123

(Telephone number, including area code, of agent for service)

 

Copies to:

 

Joanne R. Soslow, Esq.

Morgan, Lewis & Bockius LLP

1701 Market Street

Philadelphia, PA 19103

(215) 963-5000

 

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 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 ☐

 

Smaller reporting company ☐

   

Emerging growth company ☐

 

 

 

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

 

 

 

CALCULATION OF REGISTRATION FEE 

 

                   

Title of Securities to be 
Registered

 

Amount to be 
Registered (1) (2)

 

Proposed 
Maximum 
Offering Price 
Per Share (3)

 

Proposed 
Maximum 
Aggregate 
Offering Price

 

Amount of 
Registration 
Fee (4)

 

Common Stock, no par value

 

80,000 shares

 

$

80.88

 

$

6,470,400

 

$

599.81

 

(1)

Represents shares of common stock, no par value (the “Common Stock”) of Tucows Inc. (the “Company”) issuable under the Tucows (Delaware) Inc. 401(k) Plan (the "U.S. Plan") and The Deferred Profit Sharing Plan for Employees of Tucows.com Co. (the "Canadian Plan") (together, the “Plans”).

 

 

(2)

In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration Statement”) shall be deemed to cover such additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalization or similar transactions. In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to each of the Plans.

 

 

(3)

Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) under the Securities Act, and based upon the average of the high and low prices of the Registrant’s common stock as of October 28, 2021, as reported on the NASDAQ Capital Market.

 

 

(4)

Calculated pursuant to Section 6(b) of the Securities Act by multiplying the proposed maximum aggregate offering price by $0.0000927.

 

 

 

EXPLANATORY NOTE

 

This Registration Statement is being filed by Tucows Inc., a Pennsylvania corporation (the “Company”), to register 80,000 shares of its common stock, no par value per share (the “Common Stock”) which may be offered or issued from time to time pursuant to the Tucows (Delaware) Inc. 401(k) Plan and The Deferred Profit Sharing Plan for Employees of Tucows.com Co. (together, the “Plans”), together with an indeterminate amount of interests in each of the Plans. 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

 

Item 1. Plan Information.

 

The documents containing the information specified in this Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

The Registrant will furnish, without charge, to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The Registrant will also furnish without charge to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of other documents required to be delivered to employees of the Registrant under Rule 428(b). Requests should be directed to: Tucows Inc., 96 Mowat Avenue. Toronto, Ontario, Canada M6K 3M1, Attention: Corporate Secretary, telephone number (416) 535-0123.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The Company incorporates by reference into this Registration Statement the following documents which the Company previously filed with the Securities and Exchange Commission (the “Commission”):

 

 

The Company’s annual report on Form 10-K for the fiscal year ended December 31, 2020;

 

 

The Company’s quarterly reports on Form 10-Q for the fiscal quarters ended March 31, 2021, June 30, 2021 and September 30, 2021;

 

 

The Company’s current reports on Form 8-K filed with the Commission on February 10, 2021 (which contained Items 8.01 and 9.01 only) and September 8, 2021; and

 

1

 

 

The description of the Common Stock contained in the Company’s registration statement on Form 8-A filed with the Commission on December 27, 2013, including all amendments and reports filed for the purpose of updating such description.

 

All reports and other documents that the Company files in accordance with Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered by this Registration Statement have been sold or that deregisters all securities covered hereby then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. If any document that the Company files changes anything stated in this Registration Statement or in an earlier document that is incorporated into this Registration Statement, the later document will modify or supersede what is stated in this Registration Statement or the earlier document. Unless expressly incorporated by reference into this Registration Statement, nothing in this Item 3 shall be deemed to incorporate information furnished by the Company on Form 8-K (pursuant to the requirements of Regulation FD or otherwise) that, pursuant to and in accordance with the rules and regulations of the Commission, is not deemed “filed” for purposes of the Exchange Act.

 

 

Experts

 

The consolidated financial statements of Tucows Inc. as of December 31, 2020 and 2019, and for each of the years in the three-year period ended December 31, 2020, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2020 have been incorporated by reference herein and in the Registration Statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

Section 1741 of the Pennsylvania corporate Law, the PBCL, empowers a corporation to indemnify any officer or director acting in his or her capacity as a representative of the corporation who was or is a party or is threatened to be made a party to any action or proceeding against expenses, judgments, penalties, fines and amounts paid in settlement in connection with such action or proceeding whether the action was instituted by a third-party or arose by or in the right of the corporation. The PBCL limits the ability of a corporation to indemnify its officers and directors for conduct constituting willful misconduct or recklessness, or acts in violation of criminal statute.

 

Our bylaws provide that we will indemnify our director and officers against any liability (including any damage, judgment, amount paid in settlement, fine, penalty, punitive damages, excise tax assessed with respect to an employee benefit plan, or cost or expense of any nature (including, without limitation, attorneys’ fees and disbursements)) incurred in connection with any proceeding (including any threatened, pending or completed action, suit, appeal or other proceeding of any nature, whether civil, criminal, administrative or investigative, whether formal or informal, and whether brought by or in our right, a class of its security holders or otherwise) in which the director or officer may be involved as a party or otherwise by reason of the fact that he or she is or was serving in such person’s capacity as our director or officer if he or she acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, our best interests and, with respect to any criminal proceeding, had reasonable cause to believe his or her conduct was not unlawful, except: (a) where such indemnification is expressly prohibited by applicable law; or (b) where the conduct of the director or officer has been finally determined (i) to constitute willful misconduct or recklessness within the meaning of Section 1746(b) of PBCL or any superseding provision of law sufficient in the circumstances to bar indemnification against liabilities arising from the conduct; or (ii) to be based upon or attributable to the receipt by the director or officer from us of a personal benefit to which the director or officer is not legally entitled.

 

2

 

Our bylaws further provide that any indemnification will be made by us only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he or she has met the applicable standard of conduct set forth herein. The determination will be made: (a) by our Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the action or proceeding, (b) if such a quorum is not obtainable or if obtainable and a majority vote of a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (c) by our shareholders.

 

If the director or officer is entitled to indemnification in respect of a portion, but not all, of any liabilities to which such person may be subject, we will indemnify the director or officer to the maximum extent for such portion of the liabilities.

 

The termination of a proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent will not of itself create a presumption that the director or officer did not act in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, our best interests and, with respect to any criminal proceeding, had reasonable cause to believe his conduct was unlawful.

 

A director or officer will be entitled to indemnification within 30 days after a written request for indemnification has been delivered to our Secretary. If a written request is not paid in full by us within 30 days after such claim has been received by us, the director or officer may at any time thereafter initiate an action to recover the unpaid amount of the claim and, if successful in whole or in part, the director or officer will also be entitled to be paid the expenses of prosecuting such action.

 

We will not indemnify a director or officer for any liability incurred in a proceeding initiated (which will not be deemed to include counter claims or affirmative defenses) or participated in as an intervenor or amicus curiae by the person seeking indemnification unless such initiation of or participation in the proceeding is authorized, either before or after its commencement, by our Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding, subject to certain exceptions.

 

To the extent that a director or officer has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1741 or Section 1742 of PBCL or in defense of any claim, issue or matter therein, such person will be indemnified against expenses (including attorneys’ fees and disbursements) actually and reasonably incurred by such person in connection therewith.

 

We will pay the expenses (including attorneys’ fees and disbursements) incurred in good faith by a director or officer in advance of the final disposition of a proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that such person is not entitled to be indemnified by us. The financial ability of a director or officer to repay an advance will not be a prerequisite to the making of such advance.

 

Further, our bylaws provide that the board of directors may authorize us to purchase and maintain directors’ and officers’ liability insurance, insuring against any liability asserted against him and incurred by him in his capacity or arising out of his status as a director and/or officer to the extent authorized by law.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

3

 

Item 8. Exhibits.

 

     

Exhibit No.

 

Description

4.1.1

 

Fourth Amended and Restated Articles of Incorporation of Tucows Inc. (Incorporated by reference to Exhibit 3.1 filed with the Company’s Current Report on Form 8-K, as filed with the Commission on November 29, 2007)

     

4.1.2 

 

Articles of Amendment to Fourth Amended and Restated Articles of Incorporation of Tucows Inc. (Incorporated by reference to Exhibit 3.1 filed with the Company’s Current Report on Form 8-K, as filed with the Commission on January 3, 2014).

     

4.2.1

 

Second Amended and Restated Bylaws of Tucows Inc. (Incorporated by reference to Exhibit 3.2 filed with the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, as filed with the Commission on March 29, 2007).

     

4.2.2

 

Amendment No. 1 to Second Amended and Restated Bylaws of Tucows Inc. (Incorporated by Reference to Exhibit 3.3 filed with the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012 as filed with the Commission on August 14, 2012).

     

5.1

 

Opinion of Morgan, Lewis & Bockius LLP regarding legality of securities being registered

     

23.1

 

Consent of KPMG LLP

     

23.3

 

Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1)

     

24.1 

 

Power of Attorney (included as part of the Registrant’s signature page)

     

 

The Company hereby represents that the U.S. Plan is covered by an IRS opinion letter that the U.S. Plan meets the requirements of Section 4.01(a) of the Internal Revenue Code of 1986, as amended, and will undertake to make all changes by the IRS to maintain such status.  The Company also hereby represents that the Canadian Plan is in compliance with and meets the requirements of Section 147 of the Income Tax Act and will undertake to make all changes by the Canadian Revenue Agency to maintain such status.

 

 

Item 9. Undertakings.

 

(a)   The undersigned Registrant hereby undertakes:

 

(1)          To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)         To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)     To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information in this Registration Statement;

 

(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 (1)(i) and (1)(ii) do not apply if the information required in a post-effective amendment is incorporated by reference from periodic reports filed by the Registrant under the Exchange Act.

 

4

 

(2)        That, for determining liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time 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.

 

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.

 

(b)        The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

5

 

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 Toronto, Province of Ontario, Canada, on November 4, 2021.

 

 

TUCOWS INC.

 

By:

/s/ Elliot Noss
 

Name:

Elliot Noss

 

Title:

President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOWN ALL PERSONS BY THESE PRESENTS, that each person that each person whose signature appears below constitutes and appoints Elliot Noss and Davinder Singh, or any of them acting singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign this Registration Statement on Form S-8 under the Securities Act, to sign any and all pre- or post-effective amendments to this Registration Statement on Form S-8, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, 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 and on the dates indicated below. 

 

Signature

 

Title

 

Date

         
/s/ Elliot Noss  

President, Chief Executive Officer and Director

 

November 4, 2021

Elliot Noss

 

(Principal Executive Officer)

   
         
/s/ Davinder Singh  

Chief Financial Officer

 

November 4, 2021

Davinder Singh

 

(Principal Financial and Accounting Officer)

   
         
/s/ Brad Burnham  

Director

 

November 4, 2021

Brad Burnham

       
         
/s/ Marlene Carl  

Director

 

November 4, 2021

Marlene Carl

       
         
/s/ Robin Chase  

Director

 

November 4, 2021

Robin Chase

       
         
/s/ Erez Gissin  

Director

 

November 4, 2021

Erez Gissin

       
         
/s/ Allen Karp  

Director

 

November 4, 2021

Allen Karp

       
         
/s/ Jeffrey Schwartz  

Director

 

November 4, 2021

Jeffrey Schwartz

       

 

 

Exhibit 5.1

 

MLOGO.JPG

 

 

November 4, 2021

 

Tucows Inc.

96 Mowat Avenue

Toronto, Ontario M6K 3M1

Canada

 

Re:         Tucows Inc. - Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Tucows Inc., a Pennsylvania corporation (the “Company”), in connection with the filing of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the “SEC”), relating to the registration of 80,000 shares of common stock, no par value per share (the “Shares”), of the Company, issuable in connection with the Tucows (Delaware) Inc. 401(k) Plan and The Deferred Profit Sharing Plan for Employees of Tucows.com Co. (together, the “Plans”).

 

In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of the Company’s Fourth Amended and Restated Articles of Incorporation, as amended, the Company’s Second Amended and Restated Bylaws, as amended, the Plans and such other documents, records and other instruments as we have deemed appropriate for the purposes of the opinion set forth herein.

 

We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.

 

Based upon the foregoing, we are of the opinion that the Shares have been duly authorized by the Company and, when issued and delivered by the Company in the manner and on the terms described in the Plans, will be validly issued, fully paid and non-assessable.

 

The opinions expressed herein are limited to the laws of the Commonwealth of Pennsylvania.

 

We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving such opinion, we do not thereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the SEC thereunder.

 

Very truly yours,

 

/s/ Morgan, Lewis & Bockius LLP

 

 

Exhibit 23.1

 

KPMG.JPG
   
 

KPMG LLP 

Vaughan Metropolitan Centre 

100 New Park Place  Suite 1400 

Vaughan, ON Canada L4K 0J3 

Telephone (905) 265-5900 

Fax (905) 265-6390 

www.kpmg.ca

 

 

Consent of Independent Registered Public Accounting Firm

 

We, KPMG LLP, consent to the incorporation by reference of our reports to the stockholders and board of directors of Tucows Inc. (the “Company”) on the consolidated financial statements of the Company, which comprise the consolidated balance sheets as at December 31, 2020 and December 31, 2019, the consolidated statements of comprehensive income, stockholders’ equity and cash flows for each of the years in the three-year period ended December 31, 2020, and notes to the consolidated financial statements including a summary of significant accounting policies, and on the effectiveness of internal control over financial reporting as of December 31, 2020, in this Registration Statement of Form S-8 dated November 4, 2021 relating to the registration of 80,000 Common Shares of the Company. Our reports are dated March 3, 2021. Our report on the consolidated financial statements of the Company refers to the change in the Company’s method for accounting for the adoption of ASC Topic 842: Leases.

 

 

KPMGSIG.JPG

 

 

Chartered Professional Accountants, Licensed Public Accountants

 

Vaughan, Canada
November 4, 2021