Attached files
file | filename |
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EX-10.19.1 - EX-10.19.1 - Gatos Silver, Inc. | a2242509zex-10_191.htm |
EX-10.18.1 - EX-10.18.1 - Gatos Silver, Inc. | a2242509zex-10_181.htm |
EX-10.17.1 - EX-10.17.1 - Gatos Silver, Inc. | a2242509zex-10_171.htm |
EX-10.16.1 - EX-10.16.1 - Gatos Silver, Inc. | a2242509zex-10_161.htm |
EX-10.14.1 - EX-10.14.1 - Gatos Silver, Inc. | a2242509zex-10_141.htm |
EX-10.13.1 - EX-10.13.1 - Gatos Silver, Inc. | a2242509zex-10_131.htm |
EX-10.12.5 - EX-10.12.5 - Gatos Silver, Inc. | a2242509zex-10_125.htm |
EX-10.12.4 - EX-10.12.4 - Gatos Silver, Inc. | a2242509zex-10_124.htm |
EX-10.12.3 - EX-10.12.3 - Gatos Silver, Inc. | a2242509zex-10_123.htm |
EX-10.12.2 - EX-10.12.2 - Gatos Silver, Inc. | a2242509zex-10_122.htm |
EX-10.12.1 - EX-10.12.1 - Gatos Silver, Inc. | a2242509zex-10_121.htm |
EX-3.2 - EX-3.2 - Gatos Silver, Inc. | a2242509zex-3_2.htm |
EX-3.1 - EX-3.1 - Gatos Silver, Inc. | a2242509zex-3_1.htm |
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As filed with the Securities and Exchange Commission on October 8, 2020.
Registration No. 333-249224
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GATOS SILVER, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware (State or Other Jurisdiction of Incorporation or Organization) |
1040 (Primary Standard Industrial Classification Code Number) |
27-2654848 (I.R.S. Employer Identification Number) |
8400 E. Crescent Parkway, Suite 600
Greenwood Village, CO 80111
(303) 784-5350
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Stephen Orr
Chief Executive Officer and Director
Sunshine Silver Mining & Refining Corporation
8400 E. Crescent Parkway, Suite 600
Greenwood Village, CO 80111
(303) 784-5350
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copies to: | ||
Richard D. Truesdell, Jr. Derek Dostal Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 |
Michael J. Zeidel Ryan J. Dzierniejko Skadden, Arps, Slate, Meagher & Flom LLP One Manhattan West New York, NY 10001 (212) 735-3000 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. o
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 o | Accelerated filer o | Non-accelerated filer o |
Smaller reporting company ý Emerging growth company ý |
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. ý
CALCULATION OF REGISTRATION FEE
|
||||
Title of Each Class of Securities To Be Registered |
Proposed Maximum Aggregate Offering Price(1)(2) |
Amount of Registration Fee(3) |
||
---|---|---|---|---|
Common Stock, par value $0.001 per share |
$100,000,000 | $10,910 | ||
|
- (1)
- Includes
offering price of shares of common stock which the underwriters have the right to purchase pursuant to their over-allotment option.
- (2)
- Estimated
solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
- (3)
- Previously paid.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
-
- Immediately prior to the completion of the offering to which this Registration Statement relates, we intend to undertake a reorganization and to change our name from Sunshine Silver Mining & Refining Corporation to Gatos Silver, Inc.
This Amendment No. 2 to the Registration Statement on Form S-1 (the "Registration Statement") is being filed solely for the purpose of filing certain exhibits as indicated in Item 16 of Part II of the Registration Statement. This Amendment does not modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly, a preliminary prospectus has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
|
Amount to be Paid |
|||
---|---|---|---|---|
SEC registration fee |
$ | * | ||
FINRA filing fee |
* | |||
NYSE listing fee |
* | |||
TSX listing fee |
* | |||
Transfer agents' fees |
* | |||
Printing and engraving expenses |
* | |||
Legal fees and expenses |
* | |||
Accounting fees and expenses |
* | |||
Blue sky fees and expenses |
* | |||
Miscellaneous |
* | |||
| | | | |
Total |
$ | * | ||
| | | | |
| | | | |
| | | | |
- *
- To be completed by amendment
Each of the amounts set forth above, other than the SEC registration fee and the FINRA filing fee, is an estimate.
Item 14. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, or the DGCL, provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to such corporation. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The Registrant's Amended and Restated Certificate of Incorporation provides for indemnification by the Registrant of its directors, officers and employees to the fullest extent permitted by the DGCL. The Registrant intends to enter into indemnification agreements with each of its directors and executive officers to provide these directors and officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant's Amended and Restated Certificate of Incorporation and to provide additional procedural protections. These agreements, among other things, will require the Registrant to indemnify each director and executive officer to the fullest extent permitted by Delaware law, including indemnification for expenses such as attorneys' fees, judgments, fines and settlement amounts incurred by the director or executive officer in any action or proceeding, including any action or proceeding by or in right of the Registrant, arising out of the person's services as a director or executive officer.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any
II-1
transaction from which the director derived an improper personal benefit. The Registrant's Amended and Restated Certificate of Incorporation provides for such limitation of liability.
The Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act, and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.
The proposed form of Underwriting Agreement (to be filed as Exhibit 1.1 to this Registration Statement) will provide for indemnification of directors and officers of the Registrant by the underwriters against certain liabilities.
Item 15. Recent Sales of Unregistered Securities.
During the past three years, we have issued and sold the securities described below without registering the securities under the U.S. Securities Act.
- 1.
- On
November 15, 2017, we issued and sold 2,222,222 shares of common stock to one or more private equity investment funds, institutional investors and other
persons for $9,999,999.
- 2.
- On
March 15, 2018, we issued and sold 23,000 shares of common stock to certain of our directors and officers for $103,500.
- 3.
- On
May 24, 2019, we issued and sold 4,166,667 shares of common stock to one or more private equity investment funds, institutional investors and other persons
for $25,000,002.
- 4.
- From
June 3, 2019 to June 19, 2019, we issued and sold an aggregate of 77,643 shares of common stock to certain of our directors and officers for
$465,858.
- 5.
- On
July 16, 2019, we issued and sold 2,500,000 shares of common stock to one or more private equity investment funds, institutional investors and other persons
for $15,000,000.
- 6.
- From April 20, 2020 to August 10, 2020, we issued and sold $12,000,000 aggregate principal amount of convertible notes to one or more private equity investment funds, institutional investors and other persons.
The offers, sales and issuances of the securities described in the preceding table were exempt from registration either (i) under Section 4(a)(2) of the U.S. Securities Act and the rules and regulations promulgated thereunder in that the transactions were between an issuer and sophisticated investors or members of its senior executive management and did not involve any public offering within the meaning of Section 4(a)(2), (ii) under Regulation S promulgated under the U.S. Securities Act in that offers, sales and issuances were not made to persons in the United States and no directed selling efforts were made in the United States, (iii) under Rule 144A under the U.S. Securities Act in that the shares were offered and sold by the initial purchasers to qualified institutional buyers or (iv) under Rule 701 promulgated under the U.S. Securities Act in that the transactions were under compensatory benefit plans and contracts relating to compensation.
Item 16. Exhibits and Financial Statement Schedules.
(a) The list of exhibits set forth under "Exhibit Index" at the end of the is Registration Statement is incorporated by reference.
(b) No financial statement schedules are provided because the information called for is not required or is shown either in the financial statements or the notes thereto.
II-2
The undersigned Registrant hereby undertakes:
(a) Insofar as indemnification for liabilities arising under the U.S. Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referenced in Item 14 of this Registration Statement, 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 U.S. 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 hereunder, 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 of whether such indemnification by it is against public policy as expressed in the U.S. Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(a) For purposes of determining any liability under the U.S. Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the U.S. Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the U.S. Securities Act, each post-effective amendment that contains a form of prospectus 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.
II-3
II-4
II-5
- *
- To
be filed by amendment.
-
- Previously
filed.
- #
- Portions of this exhibit have been omitted because they are both (i) not material and (ii) would likely cause competitive harm to the Company if publicly disclosed.
II-6
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado, on October 8, 2020.
SUNSHINE SILVER MINING & REFINING CORPORATION | ||||||
By: |
/s/ STEPHEN ORR |
|||||
Name: | Stephen Orr | |||||
Title: | Chief Executive Officer |
II-7
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/ STEPHEN ORR Stephen Orr |
Chief Executive Officer and Director (principal executive officer) | October 8, 2020 | ||||
/s/ ROGER JOHNSON Roger Johnson |
Chief Financial Officer (principal financial officer and principal accounting officer) |
October 8, 2020 |
||||
* Thomas S. Kaplan |
Chairman of the Board of Directors |
October 8, 2020 |
||||
* Janice Stairs |
Lead Director |
October 8, 2020 |
||||
* Jeb Burns |
Director |
October 8, 2020 |
||||
* Ali Erfan |
Director |
October 8, 2020 |
||||
* Igor Gonzales |
Director |
October 8, 2020 |
||||
* Karl Hanneman |
Director |
October 8, 2020 |
||||
* Igor Levental |
Director |
October 8, 2020 |
||||
* David Peat |
Director |
October 8, 2020 |
||||
*By: |
/s/ ROGER JOHNSON Roger Johnson Attorney-in-Fact |
II-8
EXPLANATORY NOTE
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
-
Item 13. Other Expenses of Issuance and Distribution .
Item 14. Indemnification of Directors and Officers .
Item 15. Recent Sales of Unregistered Securities .
Item 16. Exhibits and Financial Statement Schedules .
Item 17. Undertakings.
SIGNATURES