As filed with the Securities and Exchange Commission
on June 30, 2023
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
GOLDEN MINERALS COMPANY
(Exact name of registrant as specified in its charter)
| Delaware |
|
26-4413382 |
| (State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification Number) |
350 Indiana Street, Suite 650
Golden, Colorado 80401
(Address of Principal Executive Offices)
Golden Minerals Company 2023 Equity Incentive
Plan
(Full title of the plan)
Julie Z. Weedman
Sr. Vice President and Chief Financial Officer
Golden Minerals Company
350 Indiana Street, Suite 650
Golden, Colorado 80401
Telephone: (303) 839-5060
(Name, address, including zip code, and telephone number,
including area code, of agent for service) |
|
With copies to:
Brian Boonstra
Davis Graham & Stubbs LLP
1550 Seventeenth Street, Suite 500
Denver, Colorado 80202
Telephone: (303) 892-9400 |
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 complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ¨
Explanatory Note
The Company is filing this Registration Statement
on Form S-8 to register 360,000 shares of common stock of the Company, $0.01 par value per share (the “Common Stock”),
which are authorized for issuance under the Golden Minerals Company 2023 Equity Incentive Plan (the “Plan”). On April 26,
2023, the Company filed with the Securities and Exchange Commission (the “Commission”) a definitive proxy statement that included
a proposal to, among other things, approve the Plan. The Plan was approved by the Company’s stockholders on May 26, 2023, at
the annual meeting of the stockholders.
As used in this Registration Statement, the term
“Company” or “Registrant” refers to Golden Minerals Company and its subsidiaries.
PART I
INFORMATION REQUIRED IN THE 10(A) PROSPECTUS
As permitted by the rules of
the Commission, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing
the information specified in Part I will be sent or given to the participants in the Plan as required by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission as part
of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. Those
documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof,
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 filed
by the Company with the Commission are hereby incorporated into this Registration Statement by reference as of their date of filing with
the Commission:
| (c) | The Company’s Current Reports on Form 8-K, as filed with the Commission on April 4,
2023, April 7,
2023, May 19,
2023, May 30,
2023, June 9,
2023, June 16,
2023 and June 29, 2023; and |
| (d) | The description of the Company’s common stock contained in Exhibit 4.5 to the Annual Report,
and including any other amendment or report filed for the purpose of updating such description. |
All other documents filed
by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)
subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered under this Registration Statement have been sold, or deregistering all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and shall be a part hereof from the date of the filing of such documents.
Any statement contained in
a document incorporated by, or deemed 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 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
The Company is incorporated in Delaware. Under
Section 145 of the Delaware General Corporation Law, a Delaware corporation has the power, under specified circumstances, to indemnify
its directors, officers, employees and agents in connection with actions, suits or proceedings brought against them by a third party or
in the right of the corporation, by reason of the fact that they were or are such directors, officers, employees or agents, against expenses
and liabilities incurred in any such action, suit or proceedings so long as they acted in good faith and in a manner that they reasonably
believed to be in, or not opposed to, the best interests of such corporation, and with respect to any criminal action if they had no reasonable
cause to believe their conduct was unlawful. With respect to suits by or in the right of such corporation, however, indemnification is
generally limited to attorneys’ fees and other expenses and is not available if such person is adjudged to be liable to such corporation
unless the court determines that indemnification is appropriate. A Delaware corporation also has the power to purchase and maintain insurance
for such persons. The Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”)
and the Amended and Restated Bylaws of the Company (the “Bylaws”) provide for indemnification of its directors and officers
to the fullest extent permitted by Section 145 of the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General
Corporation Law provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of
a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision
may not eliminate or limit the liability of a director (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) under Section 174 (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital
stock) of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal
benefit. The Company’s Certificate of Incorporation contains such a provision.
The above discussion of the Company’s Certificate
of Incorporation, Bylaws and Sections 102(b)(7) and 145 of the Delaware General Corporation Law is not intended to be exhaustive
and is qualified in its entirety by such Certificate of Incorporation, Bylaws and statutes.
The Company maintains insurance policies under
which its directors and officers are insured, within the limits and subject to the limitations of the policies, against expenses in connection
with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been a director or officer of the Company. In addition, each of the
executive officers and members of the board of directors have entered into indemnification agreements with the Company, the terms of which
are intended to complement the indemnity protection available under applicable law, the Company’s Certificate of Incorporation and
Bylaws and any policies of insurance that may currently or hereafter be maintained by the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
| (1) | Incorporated by reference to the Company’s Current Report on Form 8-K, as filed on May 30, 2023. |
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 this 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 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) 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 this Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (1)(i) and
(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 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; and
(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 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 Commission 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, 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, 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 Golden, State of Colorado, on June 30, 2023.
| |
GOLDEN MINERALS COMPANY |
| |
|
|
| |
By: |
/s/ Warren M. Rehn |
| |
Name: |
Warren M. Rehn |
| |
Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
Each of the undersigned hereby
constitutes and appoints Warren M. Rehn and Julie Z. Weedman, and each of them, as his or her true and lawful attorneys-in-fact and agents,
with full power of substitution, for him and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-8, and to file the same with all exhibits and schedules
thereto and all 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 and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or his 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, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Warren M. Rehn |
|
President, Chief Executive Officer and Director
(Principal Executive Officer) |
|
June 30, 2023 |
| Warren M. Rehn |
|
|
| |
|
|
|
|
| /s/ Julie Z. Weedman |
|
Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
|
June 30, 2023 |
| Julie Z. Weedman |
|
|
| |
|
|
|
|
| /s/ Jeffrey G. Clevenger |
|
Chairman of the Board of Directors |
|
June 30, 2023 |
| Jeffrey G. Clevenger |
|
|
| |
|
|
|
|
| /s/ W. Durand Eppler |
|
Director |
|
June 30, 2023 |
| W. Durand Eppler |
|
|
| |
|
|
|
|
| /s/ Deborah J. Friedman |
|
Director |
|
June 30, 2023 |
| Deborah J. Friedman |
|
|
| |
|
|
|
|
| /s/ Kevin R. Morano |
|
Director |
|
June 30, 2023 |
| Kevin R. Morano |
|
|
| |
|
|
|
|
| /s/ Terry M. Palmer |
|
Director |
|
June 30, 2023 |
| Terry M. Palmer |
|
|
| |
|
|
|
|
| /s/ David H. Watkins |
|
Director |
|
June 30, 2023 |
| David H. Watkins |
|
|
Exhibit 5.1
June 30, 2023
Golden Minerals Company
350 Indiana Street, Suite 650
Golden, Colorado 80401
|
Re: |
Registration Statement on Form S-8 relating to 360,000 shares of common stock under the Golden Minerals Company 2023 Equity Incentive Plan |
Gentlemen:
We have acted as counsel to
Golden Minerals Company, a Delaware corporation (the “Company”). This letter is being delivered in connection with
the Registration Statement on Form S-8 filed by the Company on June 30, 2023 (the “Registration Statement”)
with the Securities and Exchange Commission (the “Commission”) relating to the registration under the Securities Act
of 1933, as amended (the “Securities Act”) of 360,000 shares of the Company’s common stock, par value $0.01 per
share (the “Shares”), pursuant to the Golden Minerals Company 2023 Equity Incentive Plan (the “Plan”).
This opinion letter is rendered
in accordance with the requirements of Item 601(b)(5) of Regulation S–K under the Securities Act, and no opinion is expressed
herein as to any matter pertaining to the contents of the Registration Statement or any related prospectus, other than as expressly stated
herein with respect to the issue of the Shares.
In connection with our opinion
expressed below, we have examined and relied upon the accuracy of factual matters contained in (i) the Registration Statement, (ii) the
Plan, and (ii) originals and copies, certified or otherwise identified to our satisfaction, of such other agreements, documents,
corporate records, and instruments as we have deemed necessary for the purposes of the opinion expressed below. In giving this opinion,
we are assuming, without independent investigation or verification of any kind, the authenticity and completeness of all instruments presented
to us as originals, the conformity with the authentic and complete originals of all instruments presented to us as copies, the genuineness
of all signatures, the legal capacity and competency of all natural persons signing all such documents, and the accuracy and completeness
of all factual representations and statements contained in all such documents.
We assume that the Registration
Statement has been filed by the Company with the Commission and will be effective at the time that any of the Shares are issued, and that
persons acquiring the Shares will do so strictly in accordance with the terms of the Plan. We further assume that the Shares will continue
to be duly and validly authorized on the dates that the Shares are issued pursuant to the terms of the Plan and, upon the issuance of
any of the Shares, the total number of shares of common stock of the Company issued and outstanding, after giving effect to such issuance
of such Shares, will not exceed the total number of shares of common stock that the Company is then authorized to issue under its amended
and restated certificate of incorporation.
Based upon the foregoing assumptions,
and subject to the qualifications set forth in this opinion letter, having considered such questions of law as we have deemed necessary
as a basis for the opinion expressed herein, we are of the opinion that the Shares, when issued in accordance with the terms of the Plan,
will have been duly authorized by all necessary corporate action of the Company and will be validly
issued, fully paid and non-assessable.
The opinion expressed above
is limited to questions arising under the Delaware General Corporation Law and limited to the matters stated in this opinion letter, and
no opinion is implied or may be inferred beyond those expressly stated in this opinion letter. We do not express any opinion as to the
laws of any other jurisdiction. The opinion expressed above is as of the date hereof only, and we express no opinion as to, and assume
no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion
letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume
no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless
of whether or not they affect the opinion expressed in this opinion letter.
We hereby consent to be named
in the Registration Statement and to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent,
we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or under
the rules and regulations of the Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Davis Graham & Stubbs LLP |
| |
Davis Graham & Stubbs 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 Golden Minerals Company and subsidiaries of our report dated March 22, 2023,
relating to the consolidated financial statements, which appears in Golden Minerals Company’s Annual Report on Form 10-K for the
year ended December 31, 2022.
| |
/s/ Armanino LLP |
| |
Dallas, Texas |
June 30, 2023
Exhibit 23.3
CONSENT OF TETRA TECH
We hereby consent to the references to our name
and to the incorporation by reference of any mineral resource and other analyses performed by us in our capacity as an independent consultant
to Golden Minerals Company (the “Company”) (including the Rodeo Project Technical Report Summary and the Velardena Project
Technical Report Summary), which are set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022,
in this Registration Statement on Form S-8 (the “Registration Statement”) or in any amendment to the foregoing, or to any
prospectuses or amendments or supplements thereto.
Date: June 30, 2023
| /s/ Tetra Tech |
|
| Tetra Tech |
|
Exhibit 23.4
CONSENT OF AARON AMOROSO
I hereby consent to the references to my name
as a “qualified person” and to the incorporation by reference of any mineral resource and other analyses performed by me on
behalf of Golden Minerals Company (the “Company”), which are set forth in the Company’s Annual Report on Form 10-K for
the year ended December 31, 2022, in this Registration Statement on Form S-8 (the “Registration Statement”) or in any amendment
to the foregoing, or to any prospectuses or amendments or supplements thereto.
Date: June 30, 2023
| /s/ Aaron Amoroso |
|
| Aaron Amoroso |
|
Exhibit 107
Calculation of Filing Fee Tables
S-8
(Form Type)
GOLDEN MINERALS
COMPANY
(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 Share(2) |
|
|
Maximum
Aggregate
Offering Price(2) |
|
|
Fee
Rate |
|
Amount
of
Registration Fee |
|
| Equity |
|
Common Stock, $0.01
par value per share |
|
Rule 457(c) and
Rule 457(h) |
|
|
360,000 |
|
|
$ |
2.46 |
|
|
$ |
885,600 |
|
|
$110.20 per $1,000,000 |
|
$ |
97.59 |
|
| Total Offering
Amounts |
|
|
|
|
|
|
|
|
|
$ |
885,600 |
|
|
|
|
$ |
97.59 |
|
| Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.00 |
|
| Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
97.59 |
|
| |
(1) |
Pursuant to Rule 416(a) under the Securities Act of
1933, as amended (the “Securities Act”), this Registration Statement also covers any additional securities that may be
offered or issued pursuant to the Golden Minerals Company 2023 Equity Incentive Plan (the “Plan”) as a result of adjustments
for stock dividends, stock splits, and similar changes. |
| |
(2) |
Estimated solely for the purpose of calculating the
registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act based upon the average of the high and low prices of
the common stock of Golden Minerals Company as quoted on the NYSE American on June 9, 2023. |
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