Securities Registration: Employee Benefit Plan (s-8)
24 Maio 2023 - 5:10PM
Edgar (US Regulatory)
As Filed with the Securities and Exchange Commission
on May 24, 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
ORLA MINING LTD.
(Exact
name of registrant as specified in its charter)
| Canada |
Not Applicable |
| (State or other jurisdiction of |
(I.R.S. Employer |
| incorporation or organization) |
Identification No.) |
| |
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| Suite 1010, 1075 West Georgia Street |
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| Vancouver, British Columbia, Canada V6E 3C9 |
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| (Address of Principal Executive Offices) |
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Orla Mining Ltd. Stock Option Plan
Orla Mining Ltd. Restricted Share Unit Plan
Orla Mining Ltd. Deferred Share Unit Plan
Gold Standard Ventures Corp. Stock Option Plan
(Full title of plan)
C T Corporation System
28 Liberty Street
New York, New York 10005
(212) 894-8940 (775) 304-0260
(Name, address and telephone number, including
area code, of agent for service)
with copies to:
|
Jen Hansen
Cassels Brock & Blackwell LLP
2200 HSBC Building
885 West Georgia Street
Vancouver, British Columbia
Canada V6C 3E8
(604) 691-6100 |
John Koenigsknecht
Neal, Gerber & Eisenberg LLP
Two North LaSalle Street
Suite 1700
Chicago, Illinois 60602
(312) 269-8000 |
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 x
Non-accelerated filer ¨ Smaller
reporting company ¨
Emerging growth company x
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. ¨
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement
(the “Registration Statement”) on Form S-8 is being filed with the Securities and Exchange Commission (the “Commission”)
for the purpose of registering the offer and issuance of common shares, no par value (the “Common Shares”) of Orla Mining
Ltd. (“Orla,” “we,” “our,” “us”, the “Registrant,” the “Corporation”
or the “Company”) to certain employees of the Company and/or its subsidiaries under the Company’s Stock Option Plan
(as it may be amended from time to time, the “Stock Option Plan”), Restricted Share Unit Plan (as it may be amended from time
to time, the “RSU Plan”), the Deferred Share Unit Plan (as it may be amended from time to time, the “DSU Plan”),
and the Gold Standard Ventures Corp. Stock Option Plan (as it may be amended from time to time, the “Replacement Option Plan”),
and collectively with the Stock Option Plan, the RSU Plan and the DSU Plan, the (“Plans”).
Pursuant to Part I of
Form S-8, the information specified under Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement
in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”),
and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8
will be delivered to participants in the respective Plans covered by this Registration Statement as specified by Rule 428(b)(1) under
the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3
of Part II of this Form S-8, when taken together, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act. Such documents are not required to be, and are not, filed with the Commission either as part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act.
The Replacement Option Plan
governs the Replacement Options (as defined below). On August 12, 2022, the Company acquired all of the issued and outstanding common
shares of Gold Standard Ventures Corp. (“Gold Standard”) pursuant to a court approved plan of arrangement under the Business
Corporations Act (British Columbia). Under the terms of this transaction, each Gold Standard stock option (a “GSV Option”)
was exchanged for a stock option to acquire Common Shares (a “Replacement Option”), with the number of Common Shares issuable
and exercise price adjusted based on the transaction exchange ratio of 0.1193 Common Shares per share of Gold Standard.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which
have been filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
are incorporated in this Registration Statement by reference and are made a part hereof:
| (g) | All other reports filed by the Registrant under Section 13(a) or 15(d) of the Exchange
Act since January 1, 2023; and |
All documents filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing
of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining
unsold, including any Reports of Foreign Private Issuers on Form 6-K submitted during such period (or portion thereof) that is identified
in such form as being incorporated by reference into this Registration Statement, shall be deemed to be incorporated by reference herein
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. |
| Item 5. |
Interests of Named Experts and Counsel. |
| Item 6. |
Indemnification of Directors and Officers. |
Section 124 of the Canada
Business Corporation Act (“CBCA”) provides that a corporation may indemnify a director or officer of the corporation, a former
director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer,
or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative
or other proceeding in which the individual is involved because of that association with the corporation or other entity. A corporation
may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in the immediately
prior sentence. The individual shall repay the moneys if the individual does not fulfill the conditions of the immediately following sentence.
A corporation may not indemnify an individual as described in the first sentence of this paragraph unless the individual (a) acted
honestly and in good faith with a view to the best interests of the corporation, or, as the case may be, to the best interests of the
other entity for which the individual acted as director or officer or in a similar capacity at the corporation’s request; and (b) in
the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds
for believing that the individual’s conduct was lawful.
A corporation may with the
approval of a court, indemnify an individual referred to in the foregoing paragraph, or advance moneys as described in the foregoing paragraph,
in respect of an action by or on behalf of the corporation or other entity to procure a judgment in its favor, to which the individual
is made a party because of the individual’s association with the corporation or other entity as described in the foregoing paragraph
against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfills
the conditions set out in the foregoing paragraph.
Despite the first paragraph
above, an individual referred to in that paragraph is entitled to indemnity from the corporation in respect of all costs, charges and
expenses reasonably incurred by the individual in connection with the defense of any civil, criminal, administrative, investigative or
other proceeding to which the individual is subject because of the individual’s association with the corporation or other entity
as described in the first paragraph above, if the individual seeking indemnity (a) was not judged by the court or other competent
authority to have committed any fault or omitted to do anything that the individual ought to have done; and (b) fulfills the conditions
set out in the first paragraph above.
Sections 8.02 and 8.03 of
Amended and Restated By-law No. 1 of the Registrant (the “By-laws”) contains the following provisions with respect to
indemnification of the Registrant’s directors and officers and with respect to certain insurance maintained by the Registrant with
respect to certain individuals:
8.02 Indemnity.
Subject to the CBCA,
the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation or another individual
who acts or acted at the Corporation’s request as a director or officer, or an individual acting in a similar capacity, of another
entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred
by the individual in respect of any civil, criminal, administrative, investigative or other proceeding to which the individual is involved
because of that association with the Corporation or other entity, if:
| (a) | the individual acted honestly and in good faith with a view to the best interests of the Corporation, or, as the case may be, to the
best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the Corporation’s
request; and |
| (b) | in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable
grounds for believing that the individual’s conduct was lawful. |
The Corporation shall
also indemnify such person in such other circumstances as the CBCA permits or requires. The Corporation shall advance monies to a director,
officer or other individual for costs, charges and expenses of a proceeding referred to above. The individual shall repay the monies if
he or she does not fulfill the conditions set out in paragraphs (a) and (b) above. Nothing in this by-law shall limit the right
of any individual entitled to indemnity to claim indemnity apart from the provisions of this by-law, whether by contract or otherwise,
and no settlement or plea of guilty in any action or proceeding shall alone constitute evidence that a person did not meet a condition
set out in clause (a) or (b) of this Section 8.02 or any corresponding condition of the CBCA.
8.03 Insurance.
Subject to the
CBCA, the Corporation may purchase and maintain insurance for the benefit of any person referred to in Section 8.02 against any liability
incurred by him or her in his or her capacity as a director or officer, or an individual acting in a similar capacity, of the Corporation
or of another body corporate at the Corporation’s request.
The Registrant has entered
into Indemnification Agreements with each of its directors and executive officers to provide the indemnification set forth in the Registrants
By-laws. The Registrant carries directors’ and officers’ liability insurance covering acts and omissions of the directors
and officers of the Registrant. The directors and officers are not required to pay any premium in respect of the insurance.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the U.S. Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is therefore unenforceable.
| Item 7. |
Exemption From Registration Claimed. |
| (a) | The 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; 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 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 the 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. |
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(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 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 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 Vancouver, British Columbia, country of Canada, on May 24, 2023.
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ORLA MINING LTD. |
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By: |
/s/ Jason Simpson |
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Jason Simpson
President & Chief Executive Officer |
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Jason Simpson or Etienne Morin, and each of them, any
of whom may act without the joinder of the other, the true and lawful attorney-in-fact and agent with full power of substitution and resubstitution,
for and in the name, place and stead of the undersigned, in any and all capacities, to sign this Registration Statement on Form S-8
and any or all amendments or supplements to the above Registration Statement, including post-effective amendments; and to file the same,
with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do and perform to all intents and purposes as he or she might
or could do in person, ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or the substitutes for
such attorney-in-fact and agent, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act, this Registration Statement and powers of attorney have been signed by the following persons in the capacities
and on the dates indicated:
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Signature |
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Title |
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Date |
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/s/ Jason Simpson
Jason Simpson |
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President, Chief
Executive Officer and Director
(principal executive
officer) |
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May 24, 2023 |
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/s/ Etienne
Morin
Etienne Morin |
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Chief Financial Officer
(principal financial
and accounting officer) |
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May 24, 2023 |
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/s/ Charles
A. Jeannes |
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Chairman of the Board, Director |
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May 24, 2023 |
| Charles A. Jeannes |
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/s/ Jean Robitaille |
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Director |
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May 24, 2023 |
| Jean Robitaille |
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/s/ Tim Haldane |
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Director |
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May 24, 2023 |
| Tim Haldane |
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/s/ David Stephens |
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Director |
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May 24, 2023 |
| David Stephens |
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/s/ Elizabeth
McGregor |
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Director |
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May 24, 2023 |
| Elizabeth McGregor |
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/s/ Tamara
Brown |
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Director |
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May 24, 2023 |
| Tamara Brown |
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/s/ Scott Langley |
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Director |
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May 24, 2023 |
| Scott Langley |
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements
of Section 6(a) of the Securities Act, the undersigned has signed this Registration Statement, solely in the capacity of the
duly authorized representative of Orla Mining Ltd. in the United States on May 24, 2023.
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PUGLISI & ASSOCIATES
(Authorized U.S. Representative) |
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By: |
/s/ Donald J. Puglisi |
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Name: Donald J. Puglisi |
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Title: Managing Director |
Orla Mining (AMEX:ORLA)
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