As filed with the Securities and Exchange Commission on March 27, 2015.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Molycorp, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation or organization) | 27-2301797
(I.R.S. Employer Identification No.) |
5619 Denver Tech Center Parkway
Suite 1000
Greenwood Village, Colorado 80111
(Address of Principal Executive Offices) (Zip Code)
Molycorp, Inc. Amended and Restated
2010 Equity and Performance Incentive Plan
(Full title of the plan)
Geoffrey R. Bedford
President and Chief Executive Officer
Molycorp, Inc.
5619 Denver Tech Center Parkway
Suite 1000
Greenwood Village, Colorado 80111
(303) 843-8040
(Name, address, and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer | ¨ | Accelerated filer | þ | Non-accelerated filer | ¨ | Smaller reporting company | ¨ |
(Do not check if a smaller reporting company) |
__________________________
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered | Amount to be
Registered (1)(2) | Proposed Maximum
Offering Price
Per Share (3) | Proposed Maximum Aggregate Offering Price (3) | Amount of Registration Fee |
Common Stock, par value $0.001 per share | 12,000,000 | $0.365 | $4,380,000 | $508.96 |
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(1) | Represents the maximum number of shares of common stock, par value $0.001 per share (“Common Stock”), of Molycorp, Inc. (the “Registrant”) issuable pursuant to the Molycorp, Inc. Amended and Restated 2010 Equity and Performance Incentive Plan (the “Plan”) being registered hereon. |
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(2) | Pursuant to Rule 416(a) of the Securities Act of 1933 (the “Securities Act”), this Registration Statement also covers such additional shares of Common Stock that may become issuable under the Plan to prevent dilution from any stock dividend, stock split or similar transactions. |
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(3) | Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and Regulations under the Securities Act, on the basis of the average of the high and low sale prices of the Common Stock on the New York Stock Exchange on March 20, 2015, within five business days prior to filing. |
EXPLANATORY NOTE
The Registrant hereby files this Registration Statement on Form S-8 to register an additional 12,000,000 shares of Common Stock under the Plan for which a previously filed registration statement on Form S-8 relating to the Plan is effective. Pursuant to General Instruction E to Form S-8, this Registration Statement incorporates by reference the contents of the Registration Statement on Form S-8 (Registration No. 333-169450) filed by the Registrant on September 17, 2010, including all attachments and exhibits thereto, except to the extent supplemented, amended or superseded by the information set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the Securities and Exchange Commission (the “SEC”) and are incorporated herein by reference:
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(a) | The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014 (SEC File No. 001-34827), filed with the SEC on March 16, 2015; |
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(b) | The portions of the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the SEC on May 13, 2014 that are incorporated by reference into Part III of the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013 (SEC File No. 001-34827); |
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(c) | The Registrant’s Current Report on Form 8-K (SEC File No. 001-34827), filed with the SEC on January 2, 2015; and |
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(d) | The description of the Registrant’s Common Stock contained in the Registration Statement on Form 8-A (Registration No. 001-34827), filed with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on July 21, 2010, including any amendments or reports filed for the purpose of updating such description. |
All documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this Registration Statement 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, will be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. The Registrant will not, however, incorporate by reference any documents or portions thereof that are not deemed “filed” with the SEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of the Registrant’s Current Reports on Form 8-K unless, and except to the extent, specified in such reports.
Any statement contained in any document incorporated or deemed to be incorporated by reference herein will 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 such statement so modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits.
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Exhibit Number | Description |
4.1 | Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.1 to the Quarterly Report on Form 10-Q of the Registrant for the period ended June 30, 2014 filed on August 6, 2014 and incorporated herein by reference (SEC File No. 001-34827)) |
4.2 | Bylaws of the Registrant (filed as Exhibit 3.2 to the Current Report on Form 8-K of the Registrant filed on August 6, 2010 and incorporated herein by reference (SEC File No. 001-34827)) |
4.3 | Form of Certificate of Common Stock of the Registrant (filed as Exhibit 4.1 to the Pre-Effective Amendment No. 3 to Registration Statement on Form S-1 of the Registrant (Registration No. 333-166129) filed on July 13, 2010 and incorporated herein by reference) |
4.4 | Molycorp, Inc. Amended and Restated 2010 Equity and Performance Incentive Plan (filed as Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on May 13, 2014 and incorporated herein by reference) |
5.1 | Opinion of Jones Day |
23.1 | Consent of KPMG LLP (Canada) |
23.2 | Consent of PricewaterhouseCoopers LLP |
23.3 | Consent of SRK Consulting (U.S.), Inc. |
23.4 | Consent of Jones Day (included in Exhibit 5.1) |
24.1 | Power of Attorney |
SIGNATURES
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 Greenwood Village, state of Colorado, on this 27th day of March, 2015.
MOLYCORP, INC.
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By: | /s/ Geoffrey R. Bedford
Geoffrey R. Bedford
President and Chief Executive Officer |
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.
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Signature | Title | Date |
/s/ Geoffrey R. Bedford Geoffrey R. Bedford | President and Chief Executive Officer and Director (Principal Executive Officer) | March 27, 2015 |
* Michael F. Doolan | Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | March 27, 2015 |
* Russell D. Ball | Director | March 27, 2015 |
* Brian T. Dolan | Director | March 27, 2015 |
* John Graell | Director | March 27, 2015 |
* Charles R. Henry | Director | March 27, 2015 |
* James J. Jackson | Director | March 27, 2015 |
* Constantine E. Karayannopoulos | Director | March 27, 2015 |
* Mark S. Kristoff | Director | March 27, 2015 |
* Alec Machiels | Director | March 27, 2015 |
* Dr. Michael Schwarzkopf | Director | March 27, 2015 |
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* | The undersigned by signing his name hereto does sign and execute this registration statement on Form S-8 pursuant to the Power of Attorney executed by the above-named directors and officers of the registrant, which is being filed herewith on behalf of such directors and officers. |
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By: /s/ Geoffrey R. Bedford |
Geoffrey R. Bedford, as Attorney-in-Fact
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EXHIBIT INDEX
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Exhibit Number | Description |
4.1 | Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.1 to the Quarterly Report on Form 10-Q of the Registrant for the period ended June 30, 2014 filed on August 6, 2014 and incorporated herein by reference (SEC File No. 001-34827)) |
4.2 | Bylaws of the Registrant (filed as Exhibit 3.2 to the Current Report on Form 8-K of the Registrant filed on August 6, 2010 and incorporated herein by reference (SEC File No. 001-34827)) |
4.3 | Form of Certificate of Common Stock of the Registrant (filed as Exhibit 4.1 to the Pre-Effective Amendment No. 3 to Registration Statement on Form S-1 of the Registrant (Registration No. 333-166129) filed on July 13, 2010 and incorporated herein by reference) |
4.4 | Molycorp, Inc. Amended and Restated 2010 Equity and Performance Incentive Plan (filed as Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on May 13, 2014 and incorporated herein by reference) |
5.1 | Opinion of Jones Day. |
23.1 | Consent of KPMG LLP (Canada) |
23.2 | Consent of PricewaterhouseCoopers LLP |
23.3 | Consent of SRK Consulting (U.S.), Inc. |
23.4 | Consent of Jones Day (included in Exhibit 5.1) |
24.1 | Power of Attorney |
Molycorp, Inc.
5619 Denver Tech Center Parkway, Suite 1000
Greenwood Village, Colorado 80111
Re: Registration Statement on Form S-8 Filed by Molycorp, Inc.
Ladies and Gentlemen:
We have acted as counsel for Molycorp, Inc., a Delaware corporation (the “Company”), in connection with the Molycorp, Inc. Amended and Restated 2010 Equity and Performance Incentive Plan (the “Plan”). In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the additional 12,000,000 shares (the “Shares”) of common stock, par value $0.001 per share, of the Company that may be issued or delivered and sold pursuant to the Plan and the authorized forms of stock option, restricted stock or other applicable award agreements thereunder (the “Award Agreements”) will be, when issued or delivered and sold in accordance with the Plan and the Award Agreements, validly issued, fully paid and nonassessable, provided that the consideration for the Shares is at least equal to the stated par value thereof.
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware, as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction on the opinion expressed herein. In addition, we have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares pursuant to the Plan and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered and sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above, we have assumed that each award under the Plan will be approved by the Board of Directors of the Company or an authorized committee of the Board of Directors.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Company to effect the registration of the Shares under the Securities Act of 1933 (the “Act”). In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Jones Day
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports, both dated March 16, 2015, with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting.
Our report dated March 16, 2015 contains an explanatory paragraph that states that the Company continues to incur operating losses, has yet to achieve break-even cash flows from operations, has significant debt servicing costs and is currently not in compliance with the continued listing requirements of the New York Stock Exchange. These conditions, along with other matters as set forth in Note 2 in the consolidated financial statements, raise substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might arise from the outcome of this uncertainty.
/s/ KPMG LLP
Chartered Professional Accountants, Licensed Public Accountants
Toronto, Canada
March 27, 2015
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 our report dated March 3, 2014, except for the effects of the revision discussed in Note 26 to the consolidated financial statements, as to which the date is March 16, 2015 relating to the financial statements, which appears in Molycorp, Inc.'s Annual Report on Form 10‑K for the year ended December 31, 2014.
/s/ PricewaterhouseCoopers LLP
Denver, Colorado
March 27, 2015
EXHIBIT 23.3
CONSENT OF SRK (US) CONSULTING, INC.
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 28, 2010, as supplemented by (i) our alternative technical economic model dated July 2, 2010 and (ii) our alternative technical economic model dated November 8, 2010, and all information derived from such report.
Date: March 25, 2015 SRK CONSULTING (US), INC.
By: /s/ Terry Braun
Name: Terry Braun, P.E.
Title: President, Principal Environmental Engineer
MOLYCORP, INC.
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
Each of the undersigned directors and officers of Molycorp, Inc., a Delaware corporation (the “Registrant”), hereby constitutes and appoints each of Geoffrey R. Bedford, Michael F. Doolan and Kevin W. Johnson, or any of them, each acting alone, as the true and lawful attorney-in-fact or attorneys-in-fact for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute and file (i) a Registration Statement on Form S-8 (the “Form S-8 Registration Statement”) with the Securities and Exchange Commission with respect to the registration under the Securities Act of 1933 of shares of common stock of the Registrant issuable in connection with the Molycorp, Inc. 2010 Amended and Restated Equity and Performance Incentive Plan, (ii) any and all amendments, including post-effective amendments, supplements and exhibits to the Form S-8 Registration Statement and (iii) any and all applications or other documents to be filed with the Securities and Exchange Commission or state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-8 Registration Statement, with full power and authority to do and perform any and all acts and things whatsoever necessary, appropriate or desirable to be done in the premises, or in the name, place and stead of the said director and/or officer, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and approving the acts of said attorneys in fact or any of them and any substitute therefor may lawfully do or cause to be done by virtue thereof.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original with respect to the person executing it.
Executed as of this 23rd day of March, 2015.
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Signature | Title |
/s/ Geoffrey R. Bedford Geoffrey R. Bedford |
President and Chief Executive Officer and Director (Principal Executive Officer) |
/s/ Michael F. Doolan Michael F. Doolan |
Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
/s/ Russell D. Ball Russell D. Ball |
Director |
/s/ Brian T. Dolan Brian T. Dolan |
Director |
/s/ John Graell John Graell |
Director |
/s/ Charles R. Henry Charles R. Henry |
Director |
/s/ James J. Jackson James J. Jackson |
Director |
/s/ Constantine E. Karayannopoulos Constantine E. Karayannopoulos |
Director |
/s/ Mark S. Kristoff Mark S. Kristoff |
Director |
/s/ Alec Machiels Alec Machiels |
Director |
/s/ Dr. Michael Schwarzkopf Dr. Michael Schwarzkopf |
Director |
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