As filed with the Securities and Exchange Commission on November 16, 2023
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Contango ORE, Inc.
(Exact name of registrant as specified in its charter)
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27-3431051 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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3700 Buffalo Speedway, Suite 925
Houston, Texas 77098
(713) 877-1311
(Address of Principal Executive Offices, including zip code and telephone number)
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2023 Omnibus Incentive Plan
(Full title of the plan)
Rick Van Nieuwenhuyse
3700 Buffalo Speedway, Suite 925
Houston, Texas 77098
(713) 877-1311
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Paul Monsour
Holland & Knight LLP
811 Main Street, Suite 2500
Houston, Texas 77002
(713) 653-8741
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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.
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Accelerated filer |
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| Non-accelerated filer |
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Smaller Reporting Company
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Emerging growth company
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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. ☐
INTRODUCTION
On November 14, 2023 (the “Effective Date”), the stockholders of Contango ORE, Inc. (the “Company” or “Registrant”) approved the 2023 Omnibus Incentive Plan (the “2023 Plan”). As
provided in the 2023 Plan, 193,500 shares of the Company’s common stock, par value $0.01 per share, are available for issuance thereunder (the “New Shares”). In addition, (i) any shares of common stock that remain available for grant under the
Company’s 2010 Equity Compensation Plan (the “2010 Plan”) as of the Effective Date (462,567 shares), (ii) unexercised shares subject to appreciation awards (i.e. stock options or other stock-based awards based on the appreciation in value of a share
of the Company’s common stock) granted under the 2010 Plan that expire, terminate, or are canceled for any reason without having been exercised in full, and (iii) shares subject to awards that are not appreciation awards granted under the 2010 Plan
that are forfeited for any reason shall be available for issuance under the 2023 Plan (the shares in clauses (i) through (iii), the “Prior Plan Shares”). The purpose of this Registration Statement on Form S-8 (this “Registration Statement”) is to
register an aggregate of 1,192,929 shares of common stock, which consists of (i) the 193,500 New Shares and (ii) 999,429 Prior Plan Shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required by Part I of this Registration Statement will be sent or given to 2023 Plan participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be (and are not) filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Company with the SEC are incorporated by reference into this Registration Statement:
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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2023, filed with the SEC on September 13, 2023 (the “2023 Annual
Report”);
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(b)
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The portions of the Company’s Definitive Proxy Statement on Schedule 14A for the 2023 Annual Meeting of Stockholders that are specifically
incorporated by reference into the 2023 Annual Report;
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(c)
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The Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2023, filed with the SEC on November 14, 2023;
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(d)
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The Company’s Current Reports on Form 8-K filed with the SEC on July 17, 2023, July 26, 2023, August 4, 2023, August 8, 2023, August 30, 2023,
September 13, 2023, November 15, 2023, and November 16, 2023; and
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(e)
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The description of the Company’s common stock contained in the section entitled “Description of Capital Stock” in the prospectus included in
the Company's Registration Statement on Form S-3 (Registration No. 333-260511) initially filed with the SEC on October 26, 2021, including any amendments or reports filed for the purpose of updating such description (including Exhibit 4.15
to the 2023 Annual Report).
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All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement that indicates that all of the shares of common stock offered have been sold or that deregisters all of such shares then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such reports and documents. Unless expressly incorporated into this Registration Statement, a report furnished but not
filed on Form 8-K shall not be incorporated by reference into this Registration Statement to the extent furnished but not filed.
Any statement contained herein or in a document all or a portion of which is 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 that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Any such 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law (“DGCL”) allows a corporation to eliminate or limit the personal liability of directors of a corporation to the corporation or
to its stockholders for monetary damages for a breach of fiduciary duty as a director, except for (i) breach of the director’s duty of loyalty, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) certain unlawful dividends and stock repurchases or (iv) any transaction from which the director derived an improper personal benefit.
Section 145 of the DGCL provides that in the case of any action other than one by or in the right of the corporation, a corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation in such capacity on behalf of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection with such action if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 of the DGCL provides that in the case of an action by or in the right of a corporation to procure a judgment in its favor, a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation in such capacity on behalf of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted under standards similar to those set forth in the preceding paragraph, except that no indemnification may be made in respect of any action or claim as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent a court determines that such person is fairly and reasonably entitled to indemnification.
The Certificate of Incorporation and Bylaws of the Company provide for indemnification of the officers and directors of the Company to the fullest extent permitted by applicable
law. Applicable law permits indemnification for all matters (including those asserted in derivative actions) except for those determined by a court to have constituted willful misconduct or recklessness.
The Company has obtained directors’ and officers’ liability insurance with respect to liabilities arising out of certain matters, including matters arising under the Securities
Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the Company with the Commission, each of the following exhibits is filed herewith:
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Description
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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;
(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 SEC pursuant to Rule
424(b) 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 Registration Fee” table in the effective registration statement; and
(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 periodic 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 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.
(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 (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 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 may be permitted to directors, officers and controlling persons of the Registrant pursuant to
the provisions referenced in Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the SEC 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 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 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
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company 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 Fairbanks, Alaska, on November 16, 2023.
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CONTANGO ORE, INC. |
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By:
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/s/ Rick Van Nieuwenhuyse
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Name:
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Rick Van Nieuwenhuyse
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Title:
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President and Chief Executive Officer
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Each person whose signature appears below appoints Rick Van Nieuwenhuyse, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and
re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all 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 said attorneys-in-fact and agents, 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 below by the following persons in the capacities indicated and
on November 16, 2023.
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Signature
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Title
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/s/ Rick Van Nieuwenhuyse
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Rick Van Nieuwenhuyse
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President and Chief Executive Officer
(Principal Executive Officer)
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/s/ Leah Gaines
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Leah Gaines
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Vice President, Chief Financial Officer, Chief Accounting Officer, Treasurer and Secretary
(Principal Financial Officer and Principal Accounting Officer)
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/s/ Brad Juneau
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Brad Juneau
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Chairman of the Board of Directors
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/s/ Joseph S. Compofelice
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Joseph S. Compofelice
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Director
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/s/ Richard A. Shortz
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Richard A. Shortz
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Director
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/s/ Curtis J. Freeman
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Curtis J. Freeman
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Director
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November 16, 2023
Contango ORE, Inc.
3700 Buffalo Speedway, Suite 925
Houston, Texas 77098
Re: Contango ORE, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Contango ORE, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”)
of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities Act by the Company of 1,192,929 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), issuable under the Contango ORE, Inc. 2023 Omnibus Incentive Plan (as amended, the “Plan”). This opinion is being issued pursuant to the requirements of the Securities Act.
In so acting, we have examined and relied upon the original or a copy, certified or otherwise identified to our
satisfaction, of: (i) the Registration Statement and all exhibits thereto, (ii) the Company’s Certificate of Incorporation, as amended to date and currently in effect, (iii) the Company’s Bylaws, as amended to date and currently in effect; (iv) the
Plan, as amended to date and currently in effect; and (v) certain resolutions of the Board of Directors of the Company in connection with the Registration Statement. We have also examined originals or copies of such records of the Relevant Parties,
certificates and web sites of public officials and of officers or other representatives of the Relevant Parties and agreements and other documents, and made such other investigations, as we have deemed necessary, subject to the assumptions set
forth below, as a basis for the opinions expressed below.
In rendering the opinions set forth herein, we have assumed:
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(i)
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The genuineness of all signatures.
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(ii)
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The authenticity of the originals of the documents submitted to us.
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Contango ORE, Inc.
November 16, 2023
Page 2
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(iii)
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The conformity to authentic originals of any documents submitted to us as copies.
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(iv)
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As to matters of fact, the truthfulness of the representations made or otherwise incorporated in the Registration Statement and
representations and statements made in certificates or web sites of public officials and officers or other representatives of the Company.
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(v)
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That the offer and sale of Shares under the Plan complies in all respects with the terms, conditions and restrictions set forth in
the Registration Statement and the Plan.
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We have not independently established the validity of the foregoing assumptions.
Based on the foregoing, and subject to the assumptions, qualifications and limitations stated herein, we are of
the opinion that the Shares have been duly authorized by the Company and, when issued and paid for in the manner described in the Plan, the Shares will be validly issued, fully paid and non-assessable.
Our opinion is limited to the General Corporation Law of the State of Delaware, including all applicable
provisions of the constitution of such jurisdiction and reported judicial decisions interpreting such laws, and we do not express any opinion herein concerning any other laws.
This opinion letter has been prepared, and is to be understood, in accordance with customary practice of lawyers
who regularly give and lawyers who regularly advise recipients regarding opinions of this kind, is limited to the matters expressly stated herein and is provided solely in connection with the Plan, and no opinions may be inferred or implied beyond
the matters expressly stated herein. The opinions expressed herein are rendered and speak only as of the date hereof and we specifically disclaim any responsibility to update such opinions subsequent to the date hereof or to advise you of
subsequent developments affecting such opinions.
We consent to the reference to this firm in the Registration Statement under the caption “Legal Matters” as the
attorneys who will pass upon the legal validity of the Shares and to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Our consent, however, shall not constitute an admission to our being experts as provided for in Sections
7 and 11 of the Securities Act.
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Respectfully submitted, |
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/s/ Holland & Knight LLP |
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HOLLAND & KNIGHT LLP |