As filed with the Securities and Exchange Commission on January 31, 2018
United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 POS
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NextSource Materials Inc.
(Exact name of registrant as specified in its charter)
Ontario, Canada
(State or other jurisdiction of incorporation or organization)
1001–145 Wellington Street West, Toronto, Ontario M5J 1H8 (Address of Principal Executive Offices) (Zip Code) |
Stock Option Plan of NextSource Materials Inc.
(Full title of the plan)
Craig Scherba
Chief Executive Officer
1005–145 Wellington Street West
Toronto, Ontario, Canada M5J 1H8
(Name and address of agent for service)
(416) 364-4911
(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.
| Large accelerated filer ☐ | | Accelerated filer ☐ |
| Non-accelerated filer ☐ | | Smaller reporting company ☒ |
| (Do not check if a 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 13(a) of the Exchange Act. ☐
CALCULATION OF REGISTRATION FEE
Title of securities to be registered(1) |
Amount to
be registered |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of
registration fee |
| Common shares reserved for issuance pursuant to Company’s Stock Option Plan | 46,000,000 | $0.1451(2) | $6,674,600.(2) | $831.00 |
| (1) | Common shares, $0.001 par value per share, previously offered by the Registrant pursuant to the Company’s Stock Option Plan of the Registrant (the “Plan”). |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and (h) under the Securities Act of 1933, as amended, based on the average of the bid and asked price of the Registrant’s common shares reported on the OTC Markets, Inc. on January 30, 2018, which was $0.1451 per share. |
EXPLANATORY NOTE
This Post-Effective Amendment relates to the Registration Statement on Form S-8 (File No. 333-220899) (the “Registration Statement”) of NextSource Materials, Inc. (the “Registrant”), which was filed with the Securities and Exchange Commission on October 4, 2017. The Registration Statement registered 63,000,000 shares of the Registrant’s Common Stock, $0.001 par value per share, to be offered pursuant to the NextSource Materials, Inc. Stock Option Plan.
On December 27, 2017, the Registrant completed its change of domicile (the “Redomicile”), pursuant to which the Company changed its jurisdiction of incorporation from the State of Minnesota to Canada. As a consequence of completion of Redomicile, the Registrant is classified as a “foreign private issuer”, as defined under Rule 3b-4 of the Securities Exchange Act of 1934. Accordingly, the Registrant has commenced filing continuous disclosure reports with the Securities and Exchange Commission as a “foreign private issuer”, which reports will include an annual report on Form 20-F and reports on Form 6-K. Any ongoing filings will be incorporated by reference to filings made as a “foreign private issuer” with filings made with Canadian securities commissions available at www.sedar.com.
The purpose of this Post-Effective Amendment is to add to reflect the new status as a “foreign private issuer” and the filings to be incorporated by reference as a consequence of the Redomicile. No additional securities are being registered hereby.
INTRODUCTORY STATEMENT
This registration statement on Form S-8 registers 46,000,000 common shares of NextSource Materials Inc. (the “Registrant”) that may be issued pursuant to the exercise of stock options granted under the Company’s Stock Option Plan of the Registrant (previously the Amended and Restated 2006 Stock Option Plan)(the “Plan”).
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act of 1933”), this registration statement also covers any additional securities that may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the United States Securities and Exchange Commission (the “Commission”), are incorporated herein by reference:
| (a) | The Registrant’s annual report for the fiscal year ended June 30, 2017, filed with the Commission on September 28, 2017, pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act of 1934”). |
| (b) | All other reports filed pursuant to Section 13(a) or 15(d), including reports filed as a “foreign private issuer”, of the Exchange Act of 1934 since the end of the fiscal year covered by the Registrant’s annual report incorporated by reference herein pursuant to (a) above. |
| (c) | The description of the Registrant’s common shares contained in the Registrant’s registration statement on Form 8-A, filed with the Commission on February 8, 2005 under Section 12 of the Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, 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 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.
The legality of the shares of common stock registered under the prior Registration Statement on Form S-8 were passed on for the small business issuer by Jill Arlene Robbins, P.A., one of the small business issuer's outside legal counsel. Jill Arlene Robbins holds 100,000 shares of common stock.
Item 6. Indemnification of Directors and Officers.
The Registrant is subject to the Canada Business Corporations Act (the “CBCA”). The CBCA provides in substance that, unless prohibited by its articles of incorporation or bylaws, a corporation must indemnify an officer or director who is made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements and reasonable expenses, including attorneys’ fees and disbursements, incurred by such person in connection with the proceeding, if certain criteria are met. These criteria, all of which must be met by the person seeking indemnification, are (a) that such person has not been indemnified by another organization or employee benefit plan for the same judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding with respect to the same act or omissions; (b) that such person acted in good faith; (c) that such person received no improper personal benefit and, if applicable, has satisfied certain conflicts of interest provisions under the CBCA; (d) that in the case of a criminal proceeding, such person had no reasonable cause to believe the conduct was unlawful; and (e) that such person reasonably believed the conduct was in the best interests of the corporation or, in certain limited circumstances, not opposed to the best interests of the corporation. The CBCA further provides that a director or officer is entitled to payment or reimbursement by a corporation of reasonable expenses, including attorneys’ fees and disbursements, incurred by such officer or director in advance of the final disposition of a proceeding if certain conditions are satisfied. Under the CBCA, a decision as to required indemnification or advances of expenses is made by a majority of the disinterested board of directors present at a meeting at which a disinterested quorum is present, or by a designated committee of disinterested directors, by special legal counsel, by the disinterested shareholders, or by a court.
The Registrant’s Bylaws provide that a director of the Registrant shall not be personally liable to the Registrant or its shareholders for monetary damages for breach of fiduciary duty as a director, to the fullest extent permitted by the CBCA. The Registrant’s bylaws provide that the Registrant shall indemnify its officers and directors for such expenses and liabilities, in such manner, under such circumstances and to the fullest extent permitted by the CBCA.
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 20 percent 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 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 Securities Exchange Act of 1934 that are incorporated by reference in the 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. |
| (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 Securities Exchange Act of 1934, (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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. |
| (c) | 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. |
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 Toronto, Province of Ontario, on January 31, 2018.
| | NEXTSOURCE MATERIALS Inc. |
| | By:/s/ Craig Scherba |
| | Craig Scherba Chief Executive Officer By:/s/ Marc Johnson |
| | Marc Johnson Chief Financial Officer (Principal Accounting Officer) |
SIGNATURES OF OFFICERS AND DIRECTORS
AND POWER OF ATTORNEY
We, the undersigned officers and directors of NextSource Materials Inc., do hereby constitute and appoint Marc Johnson and Craig Scherba, or either of them, our true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his 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 date indicated.
| | Signature | | | | Title | | | | Date | |
| | | | | |
| /s/ Craig Scherba | | President, Chief Executive Officer and Director | | January 31, 2018 |
| Craig Scherba | | | | |
| | | | | |
| /s/ John Sanderson | | Chairman of the Board,Director | | January 31, 2018 |
| John Sanderson | | | | |
| | | | | |
| /s/ Quentin Yarie | | Director | | January 31, 2018 |
| Quentin Yarie | | | | |
| | | | | |
| | | | | | | | | | | |
| /s/ Robin Borley | | Director | | January 31, 2018 |
| Robin Borley | | | | |
| | | | | |
| /s/ Dean Comand | | Senior Vice President and Director | | January 31, 2018 |
| Dean Comand | | | | |
| | | | | |
| /s/Dalton Larson | | Director | | January 31, 2018 |
| Dalton Larson | | | | |
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment to the Registration Statement has been signed below on this 31st day of January, 2018 by the undersigned as the duly authorized representative of NextSource Materials, Inc. in the United States.
| | /s/ Joseph Emas |
| | Surfside, Florida |
| | |
Exhibit index
