UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Metalla Royalty & Streaming Ltd.
(Exact name of registrant as specified in its charter)
British Columbia, Canada (State or other jurisdiction of incorporation or organization) |
n/a (I.R.S. Employer Identification No.) |
543 Granville Street
Suite 501
Vancouver BC
Canada V6C 1X8
(Address of Principal Executive Offices)
Share Compensation Plan
(Full title of the plan)
Registered Agent Solutions, Inc.
3400 Capitol Boulevard SE, Suite 101
Tumwater, Washington 98105
(Name and address of agent for service)
(800) 547-7007
(Telephone number, including area code, of agent for service)
With a copy to:
Christopher L. Doerksen
Dorsey & Whitney LLP
701 Fifth Avenue, Suite 6100
Seattle, WA 98104
(206) 903-8800
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 ☐ | 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 NOTE
This registration statement on Form S-8 registers the offer and sale of common shares of Metalla Royalty & Streaming Ltd. (the "Registrant") pursuant to the Metalla Royalty & Streaming Ltd. Share Compensation Plan.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and Exchange Commission (the "Commission") are hereby incorporated in this registration statement by reference:
(a) The Annual Report on Form 40-F for the year ended December 31, 2022, filed with the Commission on March 31, 2023;
(b) All other reports filed by the Registrant under Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since January 1, 2023; and
(c) The description of the Registrant's securities contained in the Registrant's registration statement on Form 40-F filed under the Exchange Act on May 30, 2019, including any amendments or reports filed for the purposes of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the 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.
One of the experts named in this registration statement, Charles Beaudry, is a consultant of the Registrant. Such expert and other experts named in this registration statement serving as officers, directors, employees or consultants may own common shares of the Registrant and may participate in the Registrant's share-based compensation plans, including the Share Compensation Plan.
Item 6. Indemnification of Directors and Officers.
The Business Corporations Act (British Columbia) ("BCBCA") provides that a company may:
However, after the final disposition of an eligible proceeding, a company must pay expenses actually and reasonably incurred by an eligible party in respect of that proceeding if the eligible party (i) has not been reimbursed for those expenses, and (ii) is wholly successful, on the merits or otherwise, or is substantially successful on the merits, in the outcome of the proceeding. The BCBCA also provides that a company may pay the expenses as they are incurred in advance of the final disposition of an eligible proceeding if the company first receives from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited under the BCBCA, the eligible party will repay the amounts advanced.
For the purpose of the BCBCA, an "eligible party," in relation to a company, means an individual who:
at a time when the corporation is or was an affiliate of the company, or
at the request of the company; or
and includes, with some exceptions, the heirs and personal or other legal representatives of that individual.
An "eligible proceeding" under the BCBCA is a proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the company or an associated corporation (i) is or may be joined as a party, or (ii) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding. A "proceeding" includes any legal proceeding or investigative action, whether current, threatened, pending or completed.
Notwithstanding the foregoing, the BCBCA prohibits indemnifying an eligible party or paying the expenses of an eligible party if any of the following conditions apply:
Additionally, if an eligible proceeding is brought against an eligible party by or on behalf of the company or by or on behalf of an associated corporation, the company must not (i) indemnify the eligible party in respect of the proceeding; or (ii) pay the expenses of the eligible party in respect of the proceeding.
Whether or not payment of expenses or indemnification has been sought, authorized or declined under the BCBCA, on the application of a company or an eligible party, the Supreme Court of British Columbia may do one or more of the following:
The BCBCA provides that a company may purchase and maintain insurance for the benefit of an eligible party or the heirs and personal or other legal representatives of the eligible party against any liability that may be incurred by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the company or an associated corporation.
The Registrant's articles provide that, subject to the BCBCA, the Registrant must indemnify a director, former director or alternate director and his or her heirs and legal personal representatives against all eligible penalties (as defined in the Registrant's articles), to which such person is or may be liable and must, after the final disposition of an eligible proceeding (as defined in the Registrant's articles), pay the expenses (as defined in the BCBCA) actually and reasonably incurred by such person in respect of that proceeding. Pursuant to the Registrant's articles, each director and alternate director is deemed to have contracted with the Registrant on the aforementioned terms.
The Registrant's articles further provide that the Registrant may indemnify any person, subject to any restrictions in the BCBCA, and that the failure of a director, alternate director or officer of the Registrant to comply with the BCBCA or the Registrant's articles does not invalidate any indemnity to which he or she is entitled under the Registrant's articles.
The Registrant is authorized by its articles to purchase and maintain insurance for the benefit of certain eligible persons, as set out in the articles.
The Registrant is a party to an indemnity agreement with each of its current directors and senior officers providing that if such director or officer or his or her heirs and personal or other legal representatives (collectively, the "indemnitee") is or may be joined as a party or is liable in respect of a judgment, penalty or fine in, or expenses related to any legal proceeding or investigative action (including derivative action) whether current, threatened, pending or completed by reason of the indemnitee being or having been a having been a director or officer of, or holding or having held an equivalent position with:
(a) the Registrant;
(b) an affiliate of the Registrant;
(c) any other corporation, partnership, trust, joint venture or other unincorporated entity for which the indemnitee is or was a director or officer, at the request of the Registrant; or
(d) a position equivalent to that of a director or officer in a partnership, trust, joint venture or other unincorporated entity,
the Registrant shall, to the extent permitted by law indemnify the indemnitee for any such:
(a) judgment, penalty or fine awarded or imposed in, or an amount paid in settlement; and
(b) costs, charges and expenses, including all legal and other fees.
The Registrant is not obligated to indemnify an indemnitee if:
(a) in relation to the subject matter of the proceeding, the director or officer did not act honestly and in good faith with a view to the best interests of the Registrant or, as the case may be, to the best interests of the other entity for which the director acted as a director or officer at the Registrant's request; and
(b) in the case of a proceeding other than a civil proceeding, the director or officer did not have reasonable grounds for believing that his or her conduct in respect of which the proceeding was brought was lawful;
provided, however, that in the absence of compelling evidence to the contrary, the director shall be presumed to have acted in good faith and in the best interests of the Registrant (or the best interests of the other entity, as the case may be).
The Registrant maintains directors' and officers' liability insurance coverage through primary and excess policies covering the Registrant and its subsidiaries, which have annual aggregate policy limits of USD$30 million, subject to a corporate retention of USD$1 million for any loss to which a retention applies. This insurance provides coverage for indemnity payments made by the Registrant to its directors and officers as required or permitted by law for losses, including legal costs, incurred by officers, directors and alternate directors in their capacity as such. This policy also provides coverage directly to individual directors and officers if they are not indemnified by the Registrant. The insurance coverage for directors and officers is subject to various exclusions.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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 of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(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 registration statement is on Form S-8 and 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 of 1933, 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 of 1933, 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.
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
EXHIBIT INDEX
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, 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 Humacao, Puerto Rico, on this 22nd day of December, 2023.
METALLA ROYALTY & STREAMING LTD. | |
By: /s/ Brett Heath | |
Name: Brett Heath | |
Title: President and Chief Executive Officer |
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Brett Heath and Saurabh Handa, or either of them, as the undersigned's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for such person and in such person's name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments), exhibits thereto, and other documents in connection therewith to this registration statement and any related registration statements necessary to register additional securities and to file the same with exhibits thereto and other documents in connection therewith with the 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 such person might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact and agent, 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/ Brett Heath | President, Chief Executive Officer and Director | December 22, 2023 | ||
Brett Heath | (Principal Executive Officer and authorized representative in the United States) | |||
/s/ Saurabh Handa |
Chief Financial Officer | December 22, 2023 | ||
Saurabh Handa | (Principal Financial Officer and Principal Accounting Officer) | |||
|
Director | December 22, 2023 | ||
Alexander Molyneux | ||||
|
Director | December 22, 2023 | ||
James Beeby | ||||
/s/ Lawrence Roulston |
Director | December 22, 2023 | ||
Lawrence Roulston | ||||
/s/ Amanda Johnston |
Director | December 22, 2023 | ||
Amanda Johnston |
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DLA Piper (Canada) LLP |
December 22, 2023
DELIVERED BY EMAIL
Metalla Royalty & Streaming Ltd.
543 Granville Street, Suite 501
Vancouver, BC V6C 1X8
Dear Sirs/Mesdames:
Re: Metalla Royalty & Streaming Ltd. (the "Company") - Registration Statement on Form S-8 |
We are Canadian counsel to the Company in connection with the preparation and filing with the United States Securities and Exchange Commission of a registration statement (the "Registration Statement") on Form S-8 under the United States Securities Act of 1933 (the "Act").
We understand that the purpose of the Registration Statement is to register up to a maximum of 3,498,270 common shares of the Company (the "Shares") pursuant to the following:
(a) the exercise of stock options ("Options") granted or to be granted pursuant to the Company's share compensation plan (the "Plan"); and
(b) the vesting of restricted share units ("RSUs") awarded or to be awarded pursuant to the Plan.
The Plan was approved by the board of directors of the Company (the "Board") by way of consent resolutions dated May 11, 2023 (the "Authorizing Resolutions") and by the shareholders of the Company (the "Shareholders") at the Company's annual general meeting of shareholders held on June 27, 2023 (the "2023 AGM").
1. SCOPE OF ENQUIRY/DOCUMENTATION
In connection with giving the opinions expressed below, we have reviewed and examined the following documents:
(a) a certificate of an officer of the Company dated December 22, 2023, as to: (i) the approval by the Board of the Plan, including the issuance of the Shares pursuant to the provisions of the Plan, and appending certified copies of the Authorizing Resolutions; and (ii) the approval of the Plan by the Shareholders and appending certified copies of the minutes of the 2023 AGM at which the approvals were obtained; and
(b) a certified copy of the Plan and all exhibits thereto.
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Page 2 of 3 |
For the purposes of these opinions, we have also considered such statutes, regulations and questions of law and examined and relied upon the corporate records of the Company maintained by us (the "Corporate Records"), certificates, and other documents which have been made available to us by the Company and have made such other examinations, searches and investigations as we have considered necessary. We have examined and have relied upon such certificates of public officials and officers of the Company, all as we have deemed relevant or necessary as the basis for the opinions hereinafter expressed.
2. ASSUMPTIONS AND RELIANCES
For the purposes of this opinion letter, we have assumed:
(a) the completeness of the Corporate Records;
(b) the legal capacity of all natural persons executing, the genuineness of all signatures on, and the authenticity and completeness of, all documents reviewed by us;
(c) the conformity with original documents of any documents reviewed by us as copies or true, certified, conformed, photostatic or electronically transmitted copies;
(d) as to the various questions of fact relevant to the opinions expressed herein, including with regards to the opinions set out in Sections 3(a) and 3(b) below, we have relied upon, and assume the accuracy of the representations and warranties contained in the documents and certificates and oral or written statements and other information of or from representatives of the Company and others and assume compliance on the part of all parties to the applicable documents with their covenants and agreements contained therein. We also have assumed that any future changes to the terms and conditions of the Plan will be duly authorized by the Company and will comply with all applicable laws and that any Shares issued on the exercise of Options or vesting of RSUs, as the case may be, will be exercised or vested in accordance with the terms governing such Option or RSU, the Plan and the terms of the applicable grant; and
(e) that whenever our opinion refers to shares of the Company issued as being "non-assessable", such opinion indicates that the holder of such shares cannot be required to contribute any further amounts to the Company by virtue of its status as holder of such shares, either in order to complete payment for the shares, to satisfy claims of creditors or otherwise; and no opinion is expressed as to the adequacy of any consideration received.
3. OPINIONS
Based and relying upon, and subject to the foregoing, and subject to the qualifications and limitations set out below we are of the opinion that the 3,498,270 Shares reserved by the Company for issuance upon:
(a) the exercise of Options granted pursuant to the Plan will, upon the due and valid exercise by the holder of each such Option in accordance with the terms and conditions of the applicable Option grant, the receipt by the Company of payment in full for each such Share to be issued and the issuance of such Shares in accordance with the terms governing such Option and the Plan, be validly issued as fully paid and non-assessable common shares of the Company; and
(b) the vesting of RSUs awarded pursuant to the Plan will, upon the award of RSUs in accordance with the terms of the Plan, the due and valid vesting of each such RSU in accordance the terms of the applicable RSU grant and the terms of the Plan and the issuance of such Shares in accordance with the terms governing such RSUs and the Plan, be validly issued as fully paid and non-assessable common shares of the Company.
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Page 3 of 3 |
4. QUALIFICATIONS AND LIMITATIONS
The foregoing opinions are further subject to the following qualifications:
(a) our opinion is expressed only with respect to the laws of the Province of British Columbia and the federal laws of Canada applicable therein;
(b) our opinion is given to you as of the date hereof and is based on legislation, regulations, orders and rulings in effect on the date hereof. We disclaim any obligation to advise you of any change after the date hereof in any matter set forth herein, and we express no opinion as to the effect of any subsequent course of dealing or conduct between the parties referred to herein.
Consent is hereby given to the use of our name in the Registration Statement, and to the filing, as an exhibit to the Registration Statement, of this Opinion. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Yours truly,
/s/ DLA Piper (Canada) LLP
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Metalla Royalty & Streaming Ltd.
We consent to the use of our report dated March 30, 2023, on the consolidated financial statements, which comprise the consolidated statements of financial position as at December 31, 2022 and December 31, 2021, the related consolidated statements of loss and comprehensive loss, cash flows, and changes in equity for each of the years in the two-year period ended December 31, 2022, and the related notes, which are incorporated by reference in this Registration Statement on Form S-8 dated December 22, 2023 of Metalla Royalty & Streaming Ltd.
/s/ KPMG LLP
Chartered Professional Accountants
December 22, 2023
Vancouver, Canada
CONSENT OF CHARLES BEAUDRY
The undersigned hereby consents to all references to the undersigned's name included in or incorporated by reference in this registration statement on Form S-8 of Metalla Royalty & Streaming Ltd. in connection with certain technical and scientific information described therein.
/s/ Charles Beaudry |
Charles Beaudry |
December 22, 2023 |
EX-FILING FEES
Calculation of Filing Fee Tables
FORM S-8
(Form Type)
METALLA ROYALTY & STREAMING LTD.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type | Security Class Title | Fee Calculation Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate | Amount of Registration Fee |
Newly Registered Securities | |||||||
Equity | Common Shares, without par value(1) | Rule 457(a) | 3,498,270(2) | $3.15(3) | $11,019,550.50(3) | $0.00014760 | $1,626.49 |
Total Offering Amounts | $11,019,550.50 | $1,626.49 | |||||
Total Fees Previously Paid | $0.00 | ||||||
Total Fee Offsets(4) | $0.00 | ||||||
Net Fee Due | $1,626.49 |
(1) This registration statement covers, in addition to the number of common shares of Metalla Royalty & Streaming Ltd. (the "Company", the "Registrant", "we" , "us" or "our"), without par value (the "Common Shares"), stated above, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), an additional indeterminate number of Common Shares that may be offered or issued as a result of one or more adjustments under the Share Compensation Plan (the "Plan") to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions.
(2) Represents Common Shares available for future issuance under the Plan.
(3) Estimated in accordance with Rule 457(a) and (h) solely for the purpose of calculating the registration fee. The offering price per share and the aggregate offering price for shares reserved for future issuance under the Plan are based on $3.15 per share, the average of the high and low prices for the Registrant's Common Shares as reported on the NYSE American on December 18, 2023.
(4) The Registrant does not have any fee offsets.