As filed with the Securities and Exchange Commission on June 6, 2022
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________
HYCROFT MINING HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
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| Delaware | | 82-2657796 |
| (State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
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| 4300 Water Canyon Road, Unit 1 | | |
| Winnemucca, Nevada | | 89445 |
| (Address of Principal Executive Offices) | | (Zip Code) |
HYMC 2020 Performance and Incentive Pay Plan
(Full title of plan)
Diane R. Garrett, Ph.D.
President and Chief Executive Officer
Hycroft Mining Holding Corporation
4300 Water Canyon Road, Unit 1
Winnemucca, Nevada 89445
(775) 304-0260
(Name, address and telephone number, including area code, of agent for service)
with copies to:
David S. Stone, Esq.
Neal, Gerber & Eisenberg LLP
Two North LaSalle Street, Suite 1700
Chicago, Illinois 60602
(312) 269-8000
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.
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| 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. ☐
EXPLANATORY STATEMENT
This Registration Statement on Form S-8 (the “Registration Statement”) is filed pursuant to General Instruction E to Form S-8 to register an additional 12,000,000 shares of Class A Common Stock, par value $0.0001 per share, (the “Common Stock”) of Hycroft Mining Holding Corporation (the “Registrant” or “Company”) issuable under the HYMC 2020 Performance and Incentive Pay Plan, as amended (the “Plan”). On June 2, 2022, the stockholders of the Company approved an amendment to such plan as previously in effect, which increased by 12,000,000 the total number of shares of Common Stock of the Company available for issuance under the Plan. The contents of the earlier registration statement on Form S-8 previously filed by the Company with the Securities and Exchange Commission (the “Commission”) and relating to the registration of shares of Common Stock for issuance under the Plan (Form S-8 filed on October 22, 2020, File No. 333-249620) are hereby incorporated by reference in this Registration Statement in accordance with General Instruction E to Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the “Note” to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents, which have been filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated in this Registration Statement by reference and are made a part hereof:
(a)Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on March 31, 2022.
(b)Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed on May 4, 2022..
(c)Current Reports on Form 8-K filed on January 10, 2022, March 1, 2022, March 15, 2022, April 11, 2022 and June 6, 2022.
(d)The description of the Registrant’s Common Stock contained in the Current Report on Form 8-K12B filed with the Commission on June 4, 2020 as amended by a Current Report on Form 8-K12B/A filed with the Commission on June 9, 2020.
In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities 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 provided, however, that no information furnished under either Item 2.02 or Item 7.01 (or any exhibits related thereto under Item 9.01) of any Current Report on Form 8-K shall be deemed to be incorporated by reference in this Registration Statement or to be a part hereof.
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 145 of the Delaware General Corporation Law, as amended (the “DGCL”), authorizes us to indemnify any director or officer under certain prescribed circumstances and subject to certain limitations against certain costs and expenses, including attorney’s fees actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which a person is a party by reason of being one of our directors or officers if it is determined that such person acted in accordance with the applicable standard of conduct set forth in such statutory provisions. The Company’s Second Amended and Restated Charter provides that its officers and directors will be indemnified by the Company to the fullest extent authorized by Delaware law, as it now exists or may in the future be amended. In addition, the Second Amended and Restated Charter, as amended, provides that the Company’s directors will not be personally liable for monetary damages to the Company or its stockholders for breaches of their fiduciary duty as directors, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL.
The Company has entered into agreements with its officers and directors to provide contractual indemnification in addition to the indemnification provided for in the charter. The Company’s Amended and Restated Bylaws also permit the Company to secure insurance on behalf of any officer, director or employee for any liability arising out of his or her actions, regardless of whether Delaware law would permit such indemnification. The Company has purchased a policy of directors’ and officers’ liability insurance that insures its officers and directors against the cost of defense, settlement or payment of a judgment in some circumstances and insures the Company against its obligations to indemnify our officers and directors.
These provisions may discourage stockholders from bringing a lawsuit against the Company’s directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against officers and directors, even though such an action, if successful, might otherwise benefit us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards against officers and directors pursuant to these indemnification provisions.
The Company believes that these provisions, the directors’ and officers’ liability insurance and the indemnity agreements are necessary to attract and retain talented and experienced officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
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| 3.1 | | |
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| 3.2* | | |
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| 3.3 | | |
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| 4.1 | | |
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| 4.2* | | |
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| 5.1* | | |
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| 23.1* | | |
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| 23.2* | | |
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| 23.3* | | |
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| 23.4* | | |
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| 23.5* | | |
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| 24.1* | | |
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| 107* | | |
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*Filed herewith. |
Item 9. Undertakings.
(a)The 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; 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 therein, 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 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all 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 Winnemucca, State of Nevada, on this 6th day of June, 2022.
HYCROFT MINING HOLDING CORPORATION
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| By: | /s/ Diane Garrett |
| Diane R. Garrett |
| President and Chief Executive Officer |
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints Diane R. Garrett and David S. Stone, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this Registration Statement, and any additional Registration Statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated
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Name | Title | Date |
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/s/ Diane R. Garrett Diane R. Garrett, Ph.D. | President, Chief Executive Officer and Director (Principal Executive Officer) | June 6, 2022 |
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/s/ Stanton Rideout Stanton Rideout | Executive Vice President and Chief Financial Officer (Principal Finance and Accounting Officer) | June 6, 2022 |
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/s/ Stephen Lang | Chairman of Board of Directors | June 6, 2022 |
Stephen Lang | | |
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/s/ Sean D. Goodman | Director | June 6, 2022 |
Sean D. Goodman | | |
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/s/ Michael Harrison | Director | June 6, 2022 |
Michael Harrison | | |
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/s/ David C. Naccarati | Director | June 6, 2022 |
David C. Naccarati | | |
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/s/ Thomas Weng | Director | June 6, 2022 |
Thomas Weng | | |
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/s/ Marni Wieshofer | Director | June 6, 2022 |
Marni Wieshofer | | |
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Hycroft Mining Holding Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
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| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered (1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee |
| Equity | Class A common stock, $0.0001 par value per share | Other (2) | 12,000,000 (3) | $1.27 (2) | $15,240,000 | $0.0000927 | $1,412.75 |
| Total Offering Amounts | | $15,240,000 | | $1,412.75 |
| Total Fee Offsets | | | | — |
| Net Fee Due | | | | $1,412.75 |
(1)Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration Statement”) shall also cover any additional shares of Class A common stock, par value $00.001 per share (“Common Stock”) of the Registrant that become issuable under the HYMC 2020 Performance and Incentive Pay 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 outstanding shares of Common Stock.
(2)Estimated in accordance with Rules 457(c) and 457(h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $1.27 per share, which is the average of the high and low prices of Common Stock on May 27, 2022, as reported on the Nasdaq Capital Market.
(3)Represents shares of Common Stock being registered for the first time pursuant to the Plan.
CERTIFICATE OF AMENDMENT
TO THE
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
HYCROFT MINING HOLDING CORPORATION
Pursuant to Sections 242 of the General
Corporation Law of the State of Delaware
Hycroft Mining Holding Corporation, a Delaware corporation (hereinafter called the "Corporation"), does hereby certify as follows:
FIRST: Article IV, Section 1 of the Corporation's Second Amended and Restated Certificate of Incorporation is hereby amended to read in its entirety as set forth below:
Authorized Capital Stock. The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 1,410,000,000 shares, consisting of (a) 1,400,000,000 shares of Class A common stock (the "Common Stock") and (b) 10,000,000 shares of preferred stock (the "Preferred Stock").
SECOND: The foregoing amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Hycroft Mining Holding Corporation has caused this Certificate to be duly executed in its corporate name this 22nd day of April, 2022.
HYCROFT MINING HOLDING CORPORATION
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| By: | /s/ Diane R. Garrett |
| Name: | Diane R. Garret Ph.D. |
| Title: | President and Chief Executive Officer and Director |
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| State of Delaware |
| Secretary of State |
| Division of Corporations |
| Delivered 01:11 PM 04/22/2022 |
| FILED 01:11 PNI 04/22/2022 |
| SR 20221583921 - File Number 6525824 |
FIRST AMENDMENT
TO THE
HYMC 2020 PERFORMANCE AND INCENTIVE PAY PLAN
Pursuant to Section 18.1 of the HYMC 2020 Performance and Incentive Pay Plan, effective upon approval by holders of a majority of the outstanding shares of common stock, par value $0.0001 per share (“Common Stock”) of Hycroft Mining Holding Corporation, a Delaware corporation (the “Corporation”), present and entitled to vote at an Annual Meeting of Stockholders held on June 2, 2022, and the approval by Board of Directors of the Corporation as of April 18, 2022, Section 4.1.1 – Share Authorization is hereby amended to increase the number of shares authorized for issuance thereunder by 12,000,000, as follows:
“4.1.1 Share Authorization. Subject to adjustment as provided in Section 4.3, the maximum number of shares of Common Stock available for issuance to Participants under the Plan on or after the Effective Date (the “Share Authorization”) shall be 14,508,002 shares, which may be issued entirely in the form of Incentive Stock Options or through a combination of any one or more of the forms of Awards permitted under the Plan. The shares of Common Stock available for issuance under the Plan may be authorized and unissued shares or treasury shares.”
June 6, 2022
Hycroft Mining Holding Corporation
4300 Water Canyon Road, Unit 1
Winnemucca, Nevada 89445
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| Re: | Hycroft Mining Holding Corporation |
| Registration Statement on Form S-8 |
Ladies and Gentlemen:
We are counsel to Hycroft Mining Holding Corporation, a Delaware corporation (the "Company"), and in such capacity we have assisted in the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), of the Company's Registration Statement on Form S-8 (the "Registration Statement") relating to 12,000,000 additional shares of the Company's Class A common stock, par value $0.0001 per share (the "Additional Common Stock"), that may be issued from time to time pursuant to the HYMC 2020 Performance and Incentive Pay Plan (the "Plan").
In connection with this opinion, we have (i) investigated such questions of law, (ii) examined originals or certified, conformed or reproduction copies of such agreements, instruments, documents and records of the Company, such certificates of public officials and such other documents, and (iii) received such information from officers and representatives of the Company, as we have deemed necessary or appropriate for the purposes of this opinion.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of all persons signing such documents on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. As to any facts material to the opinions expressed herein, we have relied upon the statements and representations of officers and other representatives of the Company and others.
Based upon the foregoing, we are of the opinion that upon the issuance by the Company of the Additional Common Stock in accordance with the terms of the Plan, the Additional Common Stock will be validly issued, fully paid and non-assessable.
In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware ("DGCL").
We express no opinion as to any laws other than (i) the federal laws of the United States of America and (ii) the DGCL. We do not undertake to advise you of any changes in our opinion
expressed herein resulting from matters that may arise after the date of this letter or that hereinafter may be brought to our attention.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
NEAL, GERBER & EISENBERG LLP
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 30, 2022, with respect to our audits of the consolidated balance sheets of Hycroft Mining Holding Corporation as of December 31, 2021 and 2020; the related consolidated statements of operations, stockholders’ equity (deficit), and cash flows for each of the years in the two-year period ended December 31, 2021; and the related notes to the consolidated financial statements, which appear in Hycroft Mining Holding Corporation’s Annual Report on Form 10-K for the year ended December 31, 2021.
/s/ Plante & Moran, PLLC
Southfield, Michigan
June 2, 2022
Ausenco Engineering USA South Inc.
595 S. Meyer Ave.
Tucson, AZ 85701
CONSENT OF THIRD-PARTY QUALIFIED PERSON
Ausenco Engineering USA South Inc.(“Ausenco”) in connection with the filing of the Hycroft Mining Holding Corporation’s registration statement on Form S-8 of the Hycroft Mining Holding Corporation Annual Report on Form 10-K for the year ended December 31, 2021 (the “Form 10-K”), consents to:
•the filing of the technical report summary titled “Technical Report Summary of Initial Assessment on the Hycroft Mine, Nevada, United States of America” (the “TRS”), with an effective date of February 17, 2022, as an exhibit to and referenced in the Form 10-K;
•the use of and references to our name in connection with the Form 10-K and the TRS; and
•the information derived, summarized, quoted or referenced from the TRS, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form 10-K.
Ausenco is responsible for authoring, and this consent pertains to, the following Sections of the TRS: 1.1, 1.2, 1.3, 1.5, 1.8, 1.10, 1.11, 2, 3.1, 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 4, 5, 10, 21, 23.1, 23.3 and portions of 22, 24 and 25.
June 6, 2022
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| /s/ James A. Norine |
| Signature of Authorized Person for |
| Ausenco Engineering USA South Inc. |
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| James A. Norine |
| Print name of Authorized Person for |
| Ausenco Engineering USA South Inc. |
Independent Mining Consultants, Inc.
3560 E. Gas Road
Tucson, AZ 85714
CONSENT OF THIRD-PARTY QUALIFIED PERSON
Independent Mining Consultants, Inc. (“IMC”), consents to the incorporation by reference in Hycroft Mining Holding Corporation’s registration statement on Form S-8 of the Hycroft Mining Holding Corporation Annual Report on Form 10-K for the year ended December 31, 2021 (the “Form 10-K”), with respect to:
•the filing and use of the technical report summary titled “Technical Report Summary of Initial Assessment on the Hycroft Mine, Nevada, United States of America” (the “TRS”), with an effective date of February 17, 2022, as an exhibit to and referenced in the Form 10-K;
•the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Registration Statement and the TRS; and
•the information derived, summarized, quoted or referenced from the TRS, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form 10-K.
IMC is responsible for authoring, and this consent pertains to, the following sections of the TRS: sections 1.4, 1.6, 1.7, 1.9, 6, 7, 8, 9, 11, 20, 23.2, and for portions of sections 22, 24, and 25.
June 6, 2022
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| /s/ John M. Marek |
| Signature of Authorized Person for |
| Independent Mining Consultants, Inc. |
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| John M. Marek |
| Print name of Authorized Person for |
| Independent Mining Consultants, Inc. |
WestLand Engineering & Environmental Services, Inc.
1650 Meadow Wood Lane
Reno, NV 89502
CONSENT OF THIRD-PARTY QUALIFIED PERSON
WestLand Engineering & Environmental Services, Inc.(“WestLand”), consents to the incorporation by reference in Hycroft Mining Holding Corporation’s registration statement on Form S-8 of the Hycroft Mining Holding Corporation Annual Report on Form 10-K for the year ended December 31, 2021 (the “Form 10-K”), with respect to:
•the filing and use of the technical report summary titled “Technical Report Summary of Initial Assessment on the Hycroft Mine, Nevada, United States of America” (the “TRS”), with an effective date of February 17, 2022, as an exhibit to and referenced in the Form 10-K;
•the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form 10-K and the TRS; and
•the information derived, summarized, quoted or referenced from the TRS, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form 10-K.
WestLand is responsible for authoring, and this consent pertains to, subsection 3.6 of the TRS.
June 6, 2022
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| /s/ Richard F. DeLong |
| Signature of Authorized Person for |
| WestLand Engineering & Environmental Services, Inc. |
|
| Richard F. DeLong |
| Print name of Authorized Person for |
| WestLand Engineering & Environmental Services, Inc. |
