As filed with the Securities and Exchange Commission on May 23,
2024
UNITED
STATES SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
TRILOGY METALS INC.
(Exact name of registrant as specified in its
charter)
British
Columbia
(State or other jurisdiction of incorporation or organization) |
|
98-1006991
(I.R.S. Employer Identification No.) |
| |
|
|
Suite 1150, 609 Granville Street
Vancouver, British Columbia
Canada V7Y 1G5
(Address of Principal Executive Offices) (Zip Code) |
| 2024
Non-Employee Directors Fixed Deferred Share Unit Plan |
| (Full
title of the plan) |
DL Services, Inc.
701 Fifth Avenue, Suite 6100
Seattle, Washington 98104
(Name and address of agent for service)
(206) 903-8800
(Telephone number, including area code, of
agent for service)
With a copy to
Kimberley R. Anderson
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 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 the 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 is filed for the purpose
of registering 1,200,000 common shares of Trilogy Metals Inc. (the “Company”), which may be issued pursuant to awards under
the 2024 Non-Employee Directors Fixed Deferred Share Unit Plan (the “Fixed DSU Plan”)
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Item 1 and Item
2 of Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the U.S. Securities
and Exchange Commission (the “SEC”) and the instructions to Form S-8, such documents are not being filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. |
Incorporation of Documents by Reference. |
The following documents that have been filed by us with the SEC are
incorporated in this registration statement by reference:
| 2. | All other reports filed by our company under Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
since November 30, 2023. |
Except to the extent that information is deemed furnished and not
filed pursuant to securities laws and regulations, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14, and 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference herein and to
be a part hereof from the dates 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 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 statements 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. |
None.
| Item
6. |
Indemnification
of Directors and Officers. |
The Business Corporations Act (British Columbia) (“BCBCA”)
provides that a company may:
| ● | indemnify
an eligible party against all judgments, penalties or fines awarded or imposed in, or amounts
paid in settlement of, an eligible proceeding, to which the eligible party is or may be liable;
and |
| ● | after
the final disposition of an eligible proceeding, pay the “expenses” (which includes
costs, charges and expenses (including legal fees) but excludes judgments, penalties, fines
or amounts paid in settlement of a proceeding) actually and reasonably incurred by an eligible
party in respect of that proceeding. |
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:
| (a) | is or was a director or officer of the company, |
| (b) | is or was a director or officer of another corporation |
| (i) | at a time when the corporation is or was an affiliate of the company,
or |
| (ii) | at the request of the company, or |
| (c) | at the request of the company, is or was, or holds or held a positive
equivalent to that of, a director or officer of a partnership, trust, joint venture or other
unincorporated entity, |
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:
| ● | if
the indemnity or payment is made under an earlier agreement to indemnify or pay expenses
and, at the time that such agreement was made, the company was prohibited from giving the
indemnity or paying the expenses by its memorandum or articles; |
| ● | if
the indemnity or payment is made otherwise than under an earlier agreement to indemnify or
pay expenses and, at the time that the indemnity or payment is made, the company is prohibited
from giving the indemnity or paying the expenses by its memorandum or articles; |
| ● | if,
in relation to the subject matter of the eligible proceeding, the eligible party did not
act honestly and in good faith with a view to the best interests of the company or the associated
corporation, or as the case may be; or |
| ● | in
the case of an eligible proceeding other than a civil proceeding, if the eligible party did
not have reasonable grounds for believing that the eligible party’s conduct in respect
of which the proceeding was brought was lawful. |
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:
| ● | order
a company to indemnify an eligible party against any liability incurred by the eligible party
in respect of an eligible proceeding; |
| ● | order
a company to pay some or all of the expenses incurred by an eligible party in respect of
an eligible proceeding; |
| ● | order
the enforcement of, or any payment under, an agreement of indemnification entered into by
a company; |
| ● | make
any other order the court considers appropriate. |
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.
Articles of the Registrant
The Registrant’s articles provide that, subject to the BCBCA,
the Registrant must indemnify a director or former director and his or her heirs and legal personal representatives against all eligible
penalties to which such person is or may be liable, and the Registrant must, after the final disposition of an eligible proceeding, pay
the expenses actually and reasonably incurred by such person in respect of that proceeding. Pursuant to the Registrant’s articles,
each 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 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 any eligible person.
Insofar as indemnification for liabilities arising under the Securities
Act 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 SEC such indemnification is against public policy as expressed in the Securities Act, and
is therefore unenforceable.
The Registrant maintains directors’ and officers’ liability
insurance for its directors. 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 and 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 has customary exclusions, including libel and slander, and those acts determined to be uninsurable
under law, or deliberately fraudulent or dishonest or to have resulted in personal profit or advantage.
| Item
7. |
Exemption
from Registration Claimed. |
Not Applicable.
* Filed herewith
| (a) | The Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: |
| (i) | To include any prospectus required by section 10(a)(3) of the
Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective amendment
hereof) 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) (§ 230.424(b) of this chapter)
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 Filing Fee Tables”
or “Calculation of Registration Fee” table, as applicable, in the effective registration
statement. |
| (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 (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference into 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. |
| (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
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 SEC such indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such issue. |
Signatures
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 Vancouver, Province of British Columbia, Canada, on this
23rd of May, 2024.
| |
TRILOGY METALS INC. |
| |
|
|
| |
By: |
/s/ Elaine Sanders |
| |
Name: |
Elaine Sanders |
| |
Title: |
Chief Financial Officer |
SIGNATURES
OF OFFICERS AND DIRECTORS
AND Power of Attorney
Each person whose signature appears below constitutes
and appoints each of Tony Giardini and Elaine Sanders as the undersigned’s true and lawful attorney-in-fact and agents, with the
full power of substitution and resubstitution, for them 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 Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Tony Giardini |
|
Director, President
and Chief Executive Officer of the Company
(Principal Executive Officer) |
|
May 23, 2024 |
| Tony Giardini |
|
|
|
| |
|
|
|
|
| /s/ Elaine Sanders |
|
Vice President,
Chief Financial Officer and Corporate Secretary of the Company
(Principal Financial Officer and Accounting Officer) |
|
May 23, 2024 |
| Elaine Sanders |
|
|
|
| |
|
|
|
|
| /s/ James Gowans |
|
Director |
|
May 23, 2024 |
| James Gowans |
|
|
|
|
| |
|
|
|
|
| /s/ William
Hayden |
|
Director |
|
May 23, 2024 |
| William Hayden |
|
|
|
|
| |
|
|
|
|
| /s/ William
Hensley |
|
Director |
|
May 23, 2024 |
| William Hensley |
|
|
|
|
| |
|
|
|
|
| /s/ Gregory
Lang |
|
Director |
|
May 23, 2024 |
| Gregory Lang |
|
|
|
|
| |
|
|
|
|
| /s/ Janice Stairs |
|
Director |
|
May 23, 2024 |
| Janice Stairs |
|
|
|
|
| |
|
|
|
|
| /s/ Diana Walters |
|
Director |
|
May 23, 2024 |
| Diana Walters |
|
|
|
|
Signature
of AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Trilogy Metals Inc. has signed this
Registration Statement on May 23, 2024.
| |
TRILOGY METALS INC. |
| |
|
|
| |
By: |
/s/ Gregory
Lang |
| |
Name: |
Gregory Lang |
| |
Title: |
Director |
Exhibit 5.1
May 23,
2024
Trilogy
Metals Inc.
609
Granville Street, Suite 1150
Vancouver
BC V7Y 1G5
RE: Trilogy
Metals Inc. – Registration Statement on Form S-8
Dear
Sirs/Mesdames:
We
have acted as Canadian counsel to Trilogy Metals Inc., a company formed under the laws of the Province of British Columbia (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, as amended (the “Act”).
The
purpose of the Registration Statement is to register the offer and sale of up to 1,200,000 common shares of the Company (the
“Shares”) issuable pursuant to the redemption of fixed deferred share units (the “Fixed DSUs”)
governed by the Trilogy Metals Inc. 2024 Non-Employee Directors Fixed Deferred Share Unit Plan (the “Fixed DSU
Plan”).
We
have examined originals or copies, certified or otherwise identified to our satisfaction, of the Notice of Articles and Articles of the
Company and resolutions of the directors of the Company and the shareholders of the Company with respect to the matters referred to herein.
We have also examined such certificates of public officials, officers of the Company, corporate records and other documents as we have
deemed necessary as a basis for the opinion expressed below. In our examination of such documents, we have assumed the authenticity of
all documents submitted to us as certified copies or facsimiles thereof.
Our
opinions herein are limited to the laws of British Columbia and the federal laws of Canada applicable therein. For greater certainty,
no opinion is provided herein regarding compliance with the rules and requirements of the Toronto Stock Exchange or any other stock
exchange that the Shares may be listed or trade on.
Based
upon the foregoing, and provided that all necessary corporate action has been taken by the Company to authorize the issuance of DSUs,
upon the redemption of Fixed DSUs in accordance with their terms and the Fixed DSU Plan, the Shares underlying the Fixed DSUs will be
validly issued as fully paid and non-assessable.
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 admit that we come within the category of persons whose consent is required under
Section 7 of the Act.
Yours
truly,
“Blake,
Cassels & Graydon 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 Trilogy Metals Inc. of our report dated
February 8, 2024 relating to the consolidated financial statements of Trilogy Metals Inc., which appears in Trilogy Metals Inc. Annual
Report on Form 10-K for the year ended November 30, 2023.
Yours
very truly,
/s/PricewaterhouseCoopers
LLP
Chartered
Professional Accountants
Vancouver,
Canada
May
23, 2024
PricewaterhouseCoopers
LLP
PricewaterhouseCoopers
Place, 250 Howe Street, Suite 1400, Vancouver, British Columbia, Canada V6C 3S7 T: +1 604 806 7000, F: +1 604 806 7806, ca_vancouver_main_fax@pwc.com,
www.pwc.com/ca
“PwC”
refers to PricewaterhouseCoopers LLP, an Ontario limited liability partnership.
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Trilogy Metals Inc.
(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
Unit |
Maximum
Aggregate
Offering
Price |
Fee Rate |
Amount of
Registration
Fee |
| Equity |
Common Shares, no par value |
Rule 457(c) and 457(h) |
1,200,000 |
$0.50175(2)(3) |
$602,100 |
0.00014760 |
$88.87 |
| Total Offering Amounts |
|
$602,100 |
|
$88.87 |
| Total Fee Offsets |
|
-- |
|
-- |
| Net Fee Due |
|
|
|
$88.87 |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers any additional shares of Trilogy Metals Inc.’s (the “Registrant”) common shares that become issuable
under the Registrant’s 2024 Non-Employee Directors Fixed Deferred Share Unit Plan, by reason of any stock dividend, stock split,
recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number
of outstanding shares of common stock. |
| (2) | Pursuant to Rule 457(c) and 457(h) under the Securities Act, the Proposed Maximum Aggregate Offering Price with respect
to the common shares is calculated based upon the average of high and low prices of the Registrant’s common stock as reported on
NYSE American on May 22, 2024. |
| (3) | Represents common shares, without par value, that may be issued pursuant to future grants under the 2024 Non-Employee Directors Fixed
Deferred Share Unit Plan. |
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