As filed with the Securities and Exchange Commission on February 24, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KINROSS GOLD CORPORATION
(Exact Name of Registrant as Specified in its Charter)
| Ontario, Canada | 650430083 |
| (State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification No.) |
| 25 York Street, 17th Floor Toronto, Ontario |
M5J 2V5 |
| (Address of Principal Executive Officers) | (Zip Code) |
Great Bear Resources Ltd. Share Option Plan
(Full title of the plan)
Martin D. Litt
Secretary
Kinross Gold U.S.A., Inc.
5075 S. Syracuse Street,
Suite 800,
Denver, Colorado,
80237
(Name and address of agent for service)
(303) 802-1445
(Telephone number, including area code, of agent for service)
With copies to:
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Robert G. DeLaMater, Esq. Sullivan & Cromwell LLP
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Luke Crosby, Esq. Vice--President, Assistant General Counsel &
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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 x | 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
On February 24, 2022, Kinross Gold Corporation (the “Registrant”) completed the acquisition of all of the issued and outstanding common shares of Great Bear Resources Ltd. (“Great Bear”) by way of an arrangement under the Business Corporations Act (British Columbia) (the “Arrangement”). The Arrangement was completed pursuant to the terms of an arrangement agreement dated December 8, 2021 between the Registrant and Great Bear. Pursuant to the Arrangement, each outstanding stock option of Great Bear granted under the Great Bear incentive share option plan (each, a “Great Bear Option”) was exchanged for an option (each, a “Replacement Option”) to purchase 3.8564 common shares of the Registrant (the “Kinross Shares”), with an exercise price per Kinross Share equal to the exercise price per share of such Great Bear Option divided by 3.8564 and rounded up to the nearest whole cent. The Registrant has prepared this Registration Statement in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to register 9,880,094 Kinross Shares that are reserved for issuance upon exercise of certain of the Replacement Options.
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PART I
Item 1. Plan Information
Information required by Part I of Form S-8 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 covered by this Registration Statement as required by Rule 428(b). Such documents are not being filed with the Securities and Exchange Commission (the “Commission”) as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
The written statement required by Item 2 of Part I is included in documents delivered to participants in the plan covered by this Registration Statement pursuant to Rule 428(b) of the Securities Act.
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PART II
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant are incorporated herein by reference:
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Form 40-F incorporated by reference herein pursuant to (a) above; and
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which is also incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
No named expert or counsel was employed by the Registrant on a contingent basis or has a substantial interest in or other relationship with the Registrant identified in Regulation S-K Item 509.
Item 6. Indemnification of Directors and Officers
Under the Business Corporations Act (Ontario), a corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity (any such person a “Qualifying Person”), against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity. A corporation shall not indemnify an individual unless the individual (1) acted honestly and in good faith with a view to the best interests of the corporation or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the corporation’s request; and (2) if the matter is a criminal or administrative action or proceeding that is enforced by a monetary penalty, the corporation shall not indemnify an individual unless the individual had reasonable grounds for believing that the individual’s conduct was lawful. A corporation may advance money to a Qualifying Person for the costs, charges and expenses of a proceeding referred to above, but the individual shall repay the money if the individual does not fulfill the conditions set out in (1) above. A corporation may, with the approval of a court, indemnify an individual referred to above, or advance moneys, in respect of an action by or on behalf of the corporation or other entity to obtain a judgment in its favour, to which the individual is made a party because of the individual’s association with the corporation or other entity as described above, against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfils the conditions set out in (1) above. Despite the provisions above, a Qualifying Person is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the corporation or other entity as described above, if the individual seeking an indemnity, (a) was not judged by a court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and (b) fulfils the conditions set out in (1) and (2) above.
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Sections 5.3, 5.4 and 5.5 of the Registrant’s By-Laws provide:
5.3 Indemnity: Every person who at any time is or has been a director or officer of the Corporation or who at any time acts or has acted at the Corporation’s request as a director or officer, or in a similar capacity, of another entity of which the Corporation is or was a shareholder or creditor, and the heirs and legal representatives of every such person, shall at all times be indemnified by the Corporation in every circumstance where the Act so permits or requires. In addition and without prejudice to the foregoing and subject to the limitations in the Act regarding indemnities in respect of derivative actions, every person who at any time is or has been a director or officer, or in a similar capacity, of the Corporation or properly incurs or has properly incurred any liability on behalf of the Corporation or who at any time acts or has acted at the Corporation’s request (in respect of the Corporation or any other entity), and his/her heirs and legal representatives, shall at all times be indemnified by the Corporation against all costs, charges and expenses, including an amount paid to settle an action or satisfy a fine or judgment, reasonably incurred by him in respect of or in connection with any civil, criminal or administrative action, proceeding or investigation (apprehended, threatened, pending, under way or completed) to which he/she is or may be made a party or in which he/she is or may become otherwise involved by reason of being or having been such a director or officer or by reason of so incurring or having so incurred such liability or by reason of so acting or having so acted (or by reason of anything alleged to have been done, omitted or acquiesced in by him in any such capacity or otherwise in respect of any of the foregoing), and all appeals therefrom, if:
(a) he/she acted honestly and in good faith with a view to the best interests of the Corporation (or, if applicable, in the best interest of the other entity for which the individual acted as a director, officer or in a similar capacity at the Corporation’s request); and
(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he/she had reasonable grounds for believing his/her conduct was lawful.
Nothing in this section shall affect any other right to indemnity to which any person may be or become entitled by contract or otherwise, and no settlement or plea of guilty in any action or proceeding shall alone constitute evidence that a person did not meet a condition set out in clause (a) or (b) of this section or any corresponding condition in the Act. From time to time the board may determine that this section shall also apply to the employees of the Corporation who are not directors or officers of the Corporation or to any particular one or more or class of such employees, either generally or in respect of a particular occurrence or class of occurrences and either prospectively or retroactively. From time to time thereafter the board may also revoke, limit or vary the continued such application of this section.
5.4. Limitation of Liability: So long as he/she acts honestly and in good faith with a view to the best interests of the Corporation (or of the entity for which the individual acted as a director, officer or in a similar capacity at the Corporation’s request), no person referred to in section 5.3 (including, to the extent it is then applicable to them, any employees referred to therein) shall be liable for any damage, loss, cost or liability sustained or incurred by the Corporation, except where so required by the Act.
5.5. Insurance: Subject to the Act, the Corporation may purchase liability insurance for the benefit of any person referred to in section 5.3.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons pursuant to the foregoing provisions, 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, therefore, is unenforceable. (See “ITEM 9. UNDERTAKINGS.”)
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Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Item 9. Undertakings.
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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material changes to such information in this Registration Statement; provided, however, paragraphs (1)(i) and (ii) above 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 Securities and Exchange 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.
(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.
(4) To file a post-effective amendment to this Registration Statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the Registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph 4 and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communication, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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 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.
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 Securities and Exchange 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.
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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 February 24, 2022.
| Kinross Gold Corporation | |||
| By: | /s/ Luke Crosby | ||
| Name: | Luke Crosby | ||
| Title: | Vice-President, Assistant General Counsel & Corporate Secretary | ||
The undersigned officers and directors do hereby constitute and appoint Geoffrey P. Gold and Luke Crosby, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, to do any and all acts and things in our name and behalf in our capacities as directors and officers, and to execute any and all instruments for us and in our names in the capacities indicated below, that such attorney may deem necessary or advisable to enable the Registrant to comply with the Securities Act and any rules, regulations and requirements of the Securities and Exchange Commission in connection with this Registration Statement, including specifically, but not limited to, power and authority to sign for us, any of us, in the capacities indicated below, any and all amendments hereto (including pre-effective and post-effective amendments or any other registration statement filed pursuant to the provisions of Rule 462(b) under the Securities Act); and we do hereby ratify and confirm all that said attorneys-in-fact and agents, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on February 24, 2022.
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Signature
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Title
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/s/ J. Paul Rollinson J. Paul Rollinson
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President and Chief Executive Officer and Director (principal executive officer) |
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/s/ Andrea S. Freeborough Andrea S. Freeborough
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Executive Vice-President and Chief Financial Officer (principal financial and principal accounting officer) |
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/s/ Ian Atkinson Ian Atkinson
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Director |
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/s/ Kerry D. Dyte Kerry D. Dyte
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Director |
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/s/ Glenn A. Ives Glenn A. Ives
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Director |
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/s/ Ave G. Lethbridge Ave G. Lethbridge
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Director |
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/s/ Elizabeth D. McGregor Elizabeth D. McGregor
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Director |
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/s/ Catherine McLeod-Seltzer Catherine McLeod-Seltzer
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Director |
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/s/ Kelly J. Osborne Kelly J. Osborne
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Director |
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/s/ David A. Scott David A. Scott
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Director |
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this Registration Statement solely in the capacity of the duly authorized representative of the Registrant in the United States, in the City of Denver, State of Colorado, USA on February 24, 2022.
| KINROSS GOLD U.S.A., INC. | ||
| By: | /s/ Martin D. Litt | |
| Martin D. Litt | ||
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Exhibit 5.1
February 24, 2022
Kinross Gold Corporation
25 York Street
17th Floor
Toronto, Ontario
Canada M5J 2V5
Ladies and Gentlemen:
Registration Statement on Form S-8
We have acted as Canadian counsel to Kinross Gold Corporation, a corporation governed under the Ontario Business Corporations Act (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company today with the Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended. The purpose of the Registration Statement is to register a total of 9,880,094 common shares in the capital of the Company (the “Common Shares”) that are issuable (“Option Shares”) pursuant to the exercise of stock options (the “Options”) granted by the Company in connection with the Company’s acquisition of Great Bear Resources Ltd. (“Great Bear”) pursuant to an arrangement under the Business Corporations Act (British Columbia) (the “Arrangement”) and governed by the terms of Great Bear’s share option plan (the “Option Plan”).
We have examined copies of the Option Plan and the Company’s articles, by-laws and certain resolutions adopted by the Board of Directors of the Company. We have also examined documents relating to the Arrangement and such statutes, corporate and other records, agreements, documents or other instruments and have made such other investigations as we have considered necessary to enable us to express the opinions set forth in this opinion letter.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies.
The opinions expressed below are limited solely to the laws of the Province of Ontario and the federal laws of Canada applicable therein.
Based upon and subject to the foregoing, we are of the opinion that upon the valid exercise of Options duly issued under the Arrangement and governed by the terms of the Option Plan, and upon receipt of payment in full for the Option Shares in respect of which such Options have been exercised, the Options Shares will be validly issued as fully paid and non-assessable common shares in the capital of the Company.
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. In giving our consent, we do not 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 thereunder.
Yours very truly,
/s/ Osler, Hoskin & Harcourt LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Kinross Gold Corporation
We consent to the use of our report dated February 16, 2022 on the consolidated financial statements of Kinross Gold Corporation, which comprise the consolidated balance sheets as of December 31, 2021 and December 31, 2020, the related consolidated statements of operations, comprehensive income, equity and cash flows for each of the years then ended, and the related notes, and our report dated February 16, 2022 on the effectiveness of internal control over financial reporting as of December 31, 2021, which are incorporated by reference in this Registration Statement on Form S-8 dated February 24, 2022 of Kinross Gold Corporation.
/s/ KPMG LLP
Chartered Professional Accountants, Licensed Public Accountants
February 24, 2022
Toronto, Canada
Exhibit 23.3
CONSENT OF JOHN SIMS
TO BEING NAMED AS A QUALIFIED PERSON
February 24, 2022
I hereby consent to the incorporation by reference into this Registration Statement on Form S-8 of the annual report on Form 40-F filed by Kinross Gold Corporation for the year ended December 31, 2020 and, to the extent applicable, the reports subsequently filed by Kinross Gold Corporation on Form 6-K, and the incorporation into this Registration Statement on Form S-8 of the information contained therein, in which I am identified as a “qualified person” in connection with the mineral reserve and mineral resource estimates contained in such reports.
| Sincerely, | |
| /s/ John Sims | |
| John Sims |
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Kinross Gold Corporation
(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)(2) | Proposed Maximum Offering Price Per Share(3) | Maximum Aggregate Offering Price(3) | Fee Rate | Amount of Registration Fee(3) | |||||||||||||||
| Equity | Common shares and associated rights(4) | Other | 9,880,094 | $ | 5.66 | $ | 55,921,332.04 | $ | 92.70 per $1,000,000 | $ | 5,183.91 | |||||||||||
| Total Offering Amounts | $ | 55,921,332.04 | $ | 5,183.91 | ||||||||||||||||||
| Total Fee Offsets | $ | 0.00 | ||||||||||||||||||||
| Net Fee Due | $ | 5,183.91 | ||||||||||||||||||||
| (1) | This Registration Statement shall also cover any additional common shares which become issuable under the Great Bear Resources Ltd. Share Option Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of outstanding common shares of Kinross Gold Corporation (the “Registrant”). |
| (2) | Represents the maximum number of common shares which may be issued under the Great Bear Resources Ltd. Share Option Plan pursuant to the Replacement Options issued by the Registrant in connection with the Registrant’s acquisition of all of the issued and outstanding common shares of Great Bear Resources Ltd. |
| (3) | Pursuant to Rule 457(h)(1) and 457(c) under the Securities Act of 1933, as amended, this amount is calculated based upon the average of the high and low prices of the Company’s common shares reported on the New York Stock Exchange system on February 22, 2022, of $5.66. It is estimated solely for the purpose of calculating the registration fee. |
| (4) | Each common share includes an attached right arising under and subject to the terms set forth in the Shareholder Rights Plan Agreement dated as of March 16, 2018 (the “Rights Agreement”), between the Registrant and Computershare Investor Services Inc., as Rights Agent. Until the occurrence of certain events described in the Rights Agreement, the rights are not exercisable, are evidenced by the Registrant’s common shares and transfer automatically with, and only with, the common shares. |