As filed with the Securities and Exchange Commission on June 30, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GOLDEN MINERALS COMPANY
(Exact name of registrant as specified in its charter)
Delaware | 26-4413382 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
350 Indiana Street, Suite 650
Golden, Colorado 80401
(Address of Principal Executive Offices)
Golden Minerals Company 2023 Equity Incentive Plan
(Full title of the plan)
Julie Z. Weedman Sr. Vice President and Chief Financial Officer Golden Minerals Company 350 Indiana Street, Suite 650 Golden, Colorado 80401 Telephone: (303) 839-5060 (Name, address, including zip code, and telephone number, including area code, of agent for service) |
With copies to: Brian Boonstra Davis Graham & Stubbs LLP 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 Telephone: (303) 892-9400 |
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 | x |
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 Note
The Company is filing this Registration Statement on Form S-8 to register 360,000 shares of common stock of the Company, $0.01 par value per share (the “Common Stock”), which are authorized for issuance under the Golden Minerals Company 2023 Equity Incentive Plan (the “Plan”). On April 26, 2023, the Company filed with the Securities and Exchange Commission (the “Commission”) a definitive proxy statement that included a proposal to, among other things, approve the Plan. The Plan was approved by the Company’s stockholders on May 26, 2023, at the annual meeting of the stockholders.
As used in this Registration Statement, the term “Company” or “Registrant” refers to Golden Minerals Company and its subsidiaries.
PART I
INFORMATION REQUIRED IN THE 10(A) PROSPECTUS
As permitted by the rules of the Commission, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be sent or given to the participants in the Plan as required by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. Those documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission are hereby incorporated into this Registration Statement by reference as of their date of filing with the Commission:
(a) | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as filed with the Commission on March 22, 2023 (the “Annual Report”); |
(b) | The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2023, as filed with the Commission on May 10, 2023; |
(c) | The Company’s Current Reports on Form 8-K, as filed with the Commission on April 4, 2023, April 7, 2023, May 19, 2023, May 30, 2023, June 9, 2023, June 16, 2023 and June 29, 2023; and |
(d) | The description of the Company’s common stock contained in Exhibit 4.5 to the Annual Report, and including any other amendment or report filed for the purpose of updating such description. |
All other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered under this Registration Statement have been sold, or deregistering all securities then remaining unsold, shall be deemed to be incorporated herein by reference and shall be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated by, or deemed 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 herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein 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
The Company is incorporated in Delaware. Under Section 145 of the Delaware General Corporation Law, a Delaware corporation has the power, under specified circumstances, to indemnify its directors, officers, employees and agents in connection with actions, suits or proceedings brought against them by a third party or in the right of the corporation, by reason of the fact that they were or are such directors, officers, employees or agents, against expenses and liabilities incurred in any such action, suit or proceedings so long as they acted in good faith and in a manner that they reasonably believed to be in, or not opposed to, the best interests of such corporation, and with respect to any criminal action if they had no reasonable cause to believe their conduct was unlawful. With respect to suits by or in the right of such corporation, however, indemnification is generally limited to attorneys’ fees and other expenses and is not available if such person is adjudged to be liable to such corporation unless the court determines that indemnification is appropriate. A Delaware corporation also has the power to purchase and maintain insurance for such persons. The Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”) and the Amended and Restated Bylaws of the Company (the “Bylaws”) provide for indemnification of its directors and officers to the fullest extent permitted by Section 145 of the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision may not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock) of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. The Company’s Certificate of Incorporation contains such a provision.
The above discussion of the Company’s Certificate of Incorporation, Bylaws and Sections 102(b)(7) and 145 of the Delaware General Corporation Law is not intended to be exhaustive and is qualified in its entirety by such Certificate of Incorporation, Bylaws and statutes.
The Company maintains insurance policies under which its directors and officers are insured, within the limits and subject to the limitations of the policies, against expenses in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been a director or officer of the Company. In addition, each of the executive officers and members of the board of directors have entered into indemnification agreements with the Company, the terms of which are intended to complement the indemnity protection available under applicable law, the Company’s Certificate of Incorporation and Bylaws and any policies of insurance that may currently or hereafter be maintained by the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
(1) | Incorporated by reference to the Company’s Current Report on Form 8-K, as filed on May 30, 2023. |
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 set forth in this 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 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 this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (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 this 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; and
(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 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.
(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.
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 Golden, State of Colorado, on June 30, 2023.
GOLDEN MINERALS COMPANY | ||
By: | /s/ Warren M. Rehn | |
Name: | Warren M. Rehn | |
Title: | President and Chief Executive Officer |
POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints Warren M. Rehn and Julie Z. Weedman, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same with all exhibits and schedules thereto and all documents in connection therewith, with the Securities and Exchange 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 and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
Signature | Title | Date | ||
/s/ Warren M. Rehn | President, Chief Executive Officer and Director (Principal Executive Officer) |
June 30, 2023 | ||
Warren M. Rehn | ||||
/s/ Julie Z. Weedman | Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | June 30, 2023 | ||
Julie Z. Weedman | ||||
/s/ Jeffrey G. Clevenger | Chairman of the Board of Directors | June 30, 2023 | ||
Jeffrey G. Clevenger | ||||
/s/ W. Durand Eppler | Director | June 30, 2023 | ||
W. Durand Eppler | ||||
/s/ Deborah J. Friedman | Director | June 30, 2023 | ||
Deborah J. Friedman | ||||
/s/ Kevin R. Morano | Director | June 30, 2023 | ||
Kevin R. Morano | ||||
/s/ Terry M. Palmer | Director | June 30, 2023 | ||
Terry M. Palmer | ||||
/s/ David H. Watkins | Director | June 30, 2023 | ||
David H. Watkins |
Exhibit 5.1
June 30, 2023
Golden Minerals Company
350 Indiana Street, Suite 650
Golden, Colorado 80401
Re: | Registration Statement on Form S-8 relating to 360,000 shares of common stock under the Golden Minerals Company 2023 Equity Incentive Plan |
Gentlemen:
We have acted as counsel to Golden Minerals Company, a Delaware corporation (the “Company”). This letter is being delivered in connection with the Registration Statement on Form S-8 filed by the Company on June 30, 2023 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”) of 360,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), pursuant to the Golden Minerals Company 2023 Equity Incentive Plan (the “Plan”).
This opinion letter is rendered in accordance with the requirements of Item 601(b)(5) of Regulation S–K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or any related prospectus, other than as expressly stated herein with respect to the issue of the Shares.
In connection with our opinion expressed below, we have examined and relied upon the accuracy of factual matters contained in (i) the Registration Statement, (ii) the Plan, and (ii) originals and copies, certified or otherwise identified to our satisfaction, of such other agreements, documents, corporate records, and instruments as we have deemed necessary for the purposes of the opinion expressed below. In giving this opinion, we are assuming, without independent investigation or verification of any kind, the authenticity and completeness of all instruments presented to us as originals, the conformity with the authentic and complete originals of all instruments presented to us as copies, the genuineness of all signatures, the legal capacity and competency of all natural persons signing all such documents, and the accuracy and completeness of all factual representations and statements contained in all such documents.
We assume that the Registration Statement has been filed by the Company with the Commission and will be effective at the time that any of the Shares are issued, and that persons acquiring the Shares will do so strictly in accordance with the terms of the Plan. We further assume that the Shares will continue to be duly and validly authorized on the dates that the Shares are issued pursuant to the terms of the Plan and, upon the issuance of any of the Shares, the total number of shares of common stock of the Company issued and outstanding, after giving effect to such issuance of such Shares, will not exceed the total number of shares of common stock that the Company is then authorized to issue under its amended and restated certificate of incorporation.
Based upon the foregoing assumptions, and subject to the qualifications set forth in this opinion letter, having considered such questions of law as we have deemed necessary as a basis for the opinion expressed herein, we are of the opinion that the Shares, when issued in accordance with the terms of the Plan, will have been duly authorized by all necessary corporate action of the Company and will be validly issued, fully paid and non-assessable.
The opinion expressed above is limited to questions arising under the Delaware General Corporation Law and limited to the matters stated in this opinion letter, and no opinion is implied or may be inferred beyond those expressly stated in this opinion letter. We do not express any opinion as to the laws of any other jurisdiction. The opinion expressed above is as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinion expressed in this opinion letter.
We hereby consent to be named in the Registration Statement and to the filing of this opinion as Exhibit 5.1 to 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 under the rules and regulations of the Commission thereunder.
Very truly yours, | |
/s/ Davis Graham & Stubbs LLP | |
Davis Graham & Stubbs LLP |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Golden Minerals Company and subsidiaries of our report dated March 22, 2023, relating to the consolidated financial statements, which appears in Golden Minerals Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
/s/ Armanino LLP | |
Dallas, Texas |
June 30, 2023
Exhibit 23.3
CONSENT OF TETRA TECH
We hereby consent to the references to our name and to the incorporation by reference of any mineral resource and other analyses performed by us in our capacity as an independent consultant to Golden Minerals Company (the “Company”) (including the Rodeo Project Technical Report Summary and the Velardena Project Technical Report Summary), which are set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, in this Registration Statement on Form S-8 (the “Registration Statement”) or in any amendment to the foregoing, or to any prospectuses or amendments or supplements thereto.
Date: June 30, 2023
/s/ Tetra Tech | |
Tetra Tech |
Exhibit 23.4
CONSENT OF AARON AMOROSO
I hereby consent to the references to my name as a “qualified person” and to the incorporation by reference of any mineral resource and other analyses performed by me on behalf of Golden Minerals Company (the “Company”), which are set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, in this Registration Statement on Form S-8 (the “Registration Statement”) or in any amendment to the foregoing, or to any prospectuses or amendments or supplements thereto.
Date: June 30, 2023
/s/ Aaron Amoroso | |
Aaron Amoroso |
Exhibit 107
Calculation of Filing Fee Tables
S-8
(Form Type)
GOLDEN MINERALS COMPANY
(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(2) |
Maximum Aggregate Offering Price(2) |
Fee Rate | Amount
of Registration Fee |
|||||||||||||||
Equity | Common Stock, $0.01 par value per share | Rule 457(c) and Rule 457(h) | 360,000 | $ | 2.46 | $ | 885,600 | $110.20 per $1,000,000 | $ | 97.59 | ||||||||||||
Total Offering Amounts | $ | 885,600 | $ | 97.59 | ||||||||||||||||||
Total Fee Offsets | $ | 0.00 | ||||||||||||||||||||
Net Fee Due | $ | 97.59 |
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional securities that may be offered or issued pursuant to the Golden Minerals Company 2023 Equity Incentive Plan (the “Plan”) as a result of adjustments for stock dividends, stock splits, and similar changes. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act based upon the average of the high and low prices of the common stock of Golden Minerals Company as quoted on the NYSE American on June 9, 2023. |