As filed with the
Securities and Exchange Commission on December 29, 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
WESTWATER RESOURCES, INC.
(Exact name of Registrant as specified in its charter)
| Delaware |
|
75-2212772 |
| (State or other jurisdiction of incorporation or organization) |
|
(IRS Employer Identification Number) |
6950 South Potomac Street, Suite 300
Centennial, Colorado 80112
(Address, including zip code, of principal executive
offices)
Westwater Resources, Inc. 2013 Omnibus
Incentive Plan, as amended
(Full title of the plan)
Steven M. Cates
Senior Vice President and Chief Financial Officer
Westwater Resources, Inc.
6950 South Potomac Street, Suite 300
Centennial, Colorado 80112
(303) 531-0516
(Name, address and telephone number, including
area code, of agent for service)
Copies
to:
Lucy Stark, Esq.
Leah Neumann, Esq.
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
Telephone: (303) 295-8000
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 Securities Act. ¨
EXPLANATORY NOTE
On
May 10, 2023, the stockholders of Westwater Resources, Inc. (the “Company” “we,” “us”
or “our”) approved an amendment to the Westwater Resources, Inc. 2013 Omnibus Incentive Plan (as amended, the “2013
Plan”) to increase the authorized number of shares of common stock available and reserved for issuance under the 2013 Plan by 1,500,000
shares. The shares of common stock being registered pursuant to this registration statement on Form S-8 are additional securities
of the same class as the securities for which registration statements on Form S-8 (File Nos. 333-257421, 333-250866, 333-226927 and
333-193075) were filed with the Securities and Exchange Commission (the “SEC”) on June 25, 2021, November 23, 2020,
August 8, 2018 and December 24, 2013, respectively. Pursuant to General Instruction E to Form S-8, the contents of such
earlier registration statements are incorporated by reference into this registration statement, except that the provisions contained in
Part II of such earlier registration statements are modified as set forth in this registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by the rules of the SEC, 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 delivered to the participants 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 SEC as part of this registration statement or as a prospectus
or prospectus supplement pursuant to Rule 424. These 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 SEC are hereby incorporated by reference in this registration statement:
| (b) | The Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023, June 30, 2023, and
September 30, 2023, filed with the SEC on May 10, 2023, August 14, 2023, and November 14, 2023, respectively; |
| (c) | The Company’s Current Reports on Form 8-K filed with the SEC on January 17, 2023, January 20, 2023, March 7, 2023, May 11, 2023, August 11, 2023, December 13, 2023, and December 13, 2023; and |
| (d) | The description of the Company’s common stock contained in its Form 8-A filed on April 11, 2007, including any amendments
or reports filed for the purpose of updating the description. |
All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after
the date hereof (excluding any documents or portions of such documents that have been “furnished” but not “filed”
for purposes of the Exchange Act), and prior to the filing of a post-effective amendment that indicates that all the securities offered
hereby have been sold or that deregisters the securities offered hereby then remaining unsold, shall also 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 this registration statement
or in a document incorporated or deemed to be incorporated by reference in this registration statement will be deemed to be modified or
superseded 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 in this registration statement modifies or supersedes that statement. Any statement so modified or superseded
will 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.
Under Delaware law, a corporation may indemnify
any person who was or is a party or is threatened to be made a party to an action (other than an action by or in the right of the corporation)
by reason of his service as a director or officer of the corporation, or his service, at the corporation’s request, as a director,
officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys’ fees) that are actually
and reasonably incurred by him (“Expenses”), and judgments, fines and amounts paid in settlement that are actually and reasonably
incurred by him, in connection with the defense or settlement of such action, provided that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation’s best interests, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe that his conduct was unlawful. Although Delaware law permits a corporation to indemnify any person
referred to above against Expenses in connection with the defense or settlement of an action by or in the right of the corporation, provided
that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests,
if such person has been judged liable to the corporation, indemnification is only permitted to the extent that the Court of Chancery (or
the court in which the action was brought) determines that, despite the adjudication of liability, such person is entitled to indemnity
for such Expenses as the court deems proper. The Delaware General Corporation Law (the “DGCL”) also provides for mandatory
indemnification of any director, officer, employee or agent against Expenses to the extent such person has been successful in any proceeding
covered by the statute. In addition, the DGCL provides the general authorization of advancement of a director’s or officer’s
litigation expenses in lieu of requiring the authorization of such advancement by the Board of Directors in specific cases, and that indemnification
and advancement of expenses provided by the statute shall not be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement or otherwise.
Our amended and restated bylaws and restated certificate
of incorporation provide for indemnification of our directors and officers and for advancement of litigation expenses to the fullest extent
permitted by current Delaware law. In addition, the Company has entered into an indemnification agreement with each director and officer
that provides for indemnification and advancement of litigation expenses to fullest extent permitted by the DGCL.
We maintain a policy of directors and officers
liability insurance which reimburses us for expenses which we may incur in connection with the foregoing indemnity provisions and which
may provide direct indemnification to directors and officers where we are unable to do so.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
* Filed herewith
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 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 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) above 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 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 herein, 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 the 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 herein, 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 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 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 Centennial, State of Colorado, on the 29th day of December 2023.
| |
WESTWATER RESOURCES, INC. |
| |
|
| |
By: |
/s/ Frank Bakker |
| |
Name: |
Frank Bakker |
| |
Title: |
President and Chief Executive Officer |
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Frank Bakker and Steven M. Cates, and each of them severally, as his or
her true and lawful attorney-in-fact, with the power of substitution and resubstitution, for him or her, and in his or her name, place
and stead, and 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 SEC, hereby ratifying and confirming
all that said attorneys-in-fact, or their substitute or substitutes, may 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/ Frank Bakker |
|
President, Chief Executive Officer and Director (Principal Executive Officer) |
|
December 29, 2023 |
| Frank Bakker |
|
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| |
|
|
|
|
| /s/ Steve M. Cates |
|
Senior Vice President – Finance and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
|
December 29, 2023 |
| Steve M. Cates |
|
|
| |
|
|
|
|
| /s/ Terence J. Cryan |
|
Director and Chairman |
|
December 29, 2023 |
| Terence J. Cryan |
|
|
| |
|
|
|
|
| /s/ Karli S. Anderson |
|
Director |
|
December 29, 2023 |
| Karli S. Anderson |
|
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| |
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|
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| /s/ Tracy D. Pagliara |
|
Director |
|
December 29, 2023 |
| Tracy D. Pagliara |
|
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| |
|
|
|
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| /s/ Deborah A. Peacock |
|
Director |
|
December 29, 2023 |
| Deborah A. Peacock |
|
|
Exhibit 5.1
December 29, 2023
Board of Directors
Westwater Resources, Inc.
6950 South Potomac Street, Suite 300
Centennial, Colorado 80112
Re: Registration
Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Westwater Resources, Inc.,
a Delaware corporation (the “Company”), in connection with its Registration Statement on Form S-8 filed
with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration
Statement”), pursuant to the Securities Act of 1933, as amended (the “Securities Act”). Pursuant
to the Registration Statement, the Company is registering for issuance under the Westwater Resources, Inc. 2013 Omnibus Incentive
Plan (as amended, the “Plan”) an additional 1,500,000 shares (the “Shares”) of the
Company’s common stock, par value $0.001 per share (“Common Stock”). This opinion letter is furnished
to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act in
connection with the Registration Statement, and no opinion is expressed or may be implied herein as to any matter pertaining to the contents
of the Registration Statement other than as to the valid issuance of the Shares.
As the basis for the opinion hereinafter expressed,
we have reviewed originals or copies of the following:
| A. | an executed copy of the Registration Statement; |
| B. | a copy of the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on
May 6, 2004, the Certificate of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary of
State of the State of Delaware on April 4, 2006, the Certificate of Amendment to the Restated Certificate of Incorporation of the
Company, filed with the Secretary of State of the State of Delaware on January 22, 2013, the Certificate of Amendment to the Restated
Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on March 7, 2016, the Certificate
of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on
August 16, 2017, and the Certificate of Amendment to the Restated Certificate of Incorporation of the Company, filed with the Secretary
of State of the State of Delaware on April 18, 2019; |
| C. | a copy of the Amended and Restated Bylaws of the Company, as amended through May 10, 2021; |
| D. | copies of resolutions and unanimous written consents adopted by the Board of Directors of the Company (the “Board”)
and the Compensation Committee of the Board (the “Compensation Committee”) relating to, among other things,
approval of the amendment of the Plan and the filing of the Registration Statement; |
| E. | copies of the reports of the inspector of election at the annual meetings of the stockholders of the Company held on May 10,
2022 and May 10, 2023, indicating the election of the members of the Board and the Compensation Committee who adopted the resolutions
approving the amendment of the Plan and the filing of the Registration Statement and indicating that the amendment of the Plan was approved
by the stockholders; and |
| Location |
Mailing Address |
Contact |
| 555 17th Street, Suite 3200 |
P.O. Box 8749 |
p: 303.295.8000 | f: 303.295.8261 |
| Denver, CO 80202-3921 |
Denver,
CO 80201-8749 |
www.hollandhart.com |
Holland & Hart LLP Anchorage Aspen Billings Boise Boulder Cheyenne Denver Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C.
| F. | the certificate of good standing covering the Company, issued by the Secretary of State of the State of Delaware as of a recent date
(the “Good Standing Certificate”). |
We have relied upon the foregoing and upon certificates
and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
We have assumed for purposes of this opinion: (a) information contained in documents reviewed by us is true, complete and correct;
(b) the genuineness and authenticity of all signatures on original documents; (c) the accuracy and completeness of all documents
delivered to us and the authenticity of all documents submitted to us as originals; (d) the conformity to originals of all documents
submitted to us as copies; (e) the accuracy, completeness and authenticity of certificates of public officials; (f) the legal
capacity of all natural persons; and (g) the due authorization, execution and delivery of all documents by parties other than the
Company.
We are opining herein as to the Delaware General
Corporation Law, as amended, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of
any other jurisdiction, or as to any matters of municipal law or the laws of any local agencies within any state.
Based on the foregoing, and subject to the qualifications,
assumptions and limitations stated herein, we are of the opinion that the Shares have been duly authorized for issuance pursuant to the
Plan and, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
We expressly disavow any obligation to advise you
with respect to future changes in law or in our knowledge or as to any event or change of condition occurring subsequent to the date of
this letter. This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons
entitled to rely upon it pursuant to the applicable provisions of the Securities Act.
We consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. In giving these consents, we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| |
Very truly yours, |
| |
|
| |
/s/ Holland & Hart LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of Westwater Resources, Inc., of our report dated March 6, 2023, relating to the consolidated financial
statements of Westwater Resources, Inc. (the “Company”) (which report expresses an unqualified opinion and includes an explanatory
paragraph relating to a going concern uncertainty), appearing in the Annual Report on Form 10-K of the Company for the year ended December
31, 2022, filed with the Securities and Exchange Commission.
/s/ Moss Adams LLP
Denver, Colorado
December 29, 2023
Exhibit 107
Calculation of Filing
Fee Tables
Form S-8
(Form Type)
Westwater Resources,
Inc.
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly Registered
and Carry Forward Securities
|
Security
Type |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered
(1) |
Proposed
Maximum
Offering
Price
Per Share |
Maximum
Aggregate
Offering
Price |
Fee Rate |
Amount of
Registration
Fee |
| Equity |
Westwater Resources, Inc. 2013 Omnibus Incentive Plan, as amended
Common Stock, par value $0.001 per share |
Rule 457(c) and Rule 457(h) |
1,500,000 (2) |
$0.60(3) |
$900,000.00 (3) |
$147.60 per $1.0 million |
$132.84 |
| Total Offering Amounts |
|
|
|
$132.84 |
| Total Fee Offsets |
|
|
|
-- |
| Net Fee Due |
|
|
|
$132.84 |
(1) Pursuant to Rule 416(a) promulgated under the Securities Act of
1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall also cover any additional shares
of Common Stock of the Registrant as may become available for issuance pursuant to the Westwater Resources, Inc. 20123 Omnibus Incentive
Plan, as amended (the “Plan”) by reason of any stock dividend, stock split, recapitalization, or other similar transaction
effected without the receipt of consideration that results in an increase in the number of the Registrant’s outstanding shares of
Common Stock.
(2) Represents the additional shares of Common Stock reserved for issuance
under the Plan.
(3) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act. The offering price is based on the average of the high and low sales
price per share of the Registrant’s Common Stock as reported on the NYSE American Stock Exchange on December 26, 2023.
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