UNITED STATES SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Ballard Power Systems Inc.
(Exact name of registrant as specified in its charter)
| British Columbia, Canada (State or other jurisdiction of incorporation or organization) |
Not Applicable (I.R.S. Employer Identification No.) | |
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9000 Glenlyon Parkway Burnaby, British Columbia | ||
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Consolidated Share Option Plan Consolidated Share Distribution Plan | ||
| (Full titles of the plans) | ||
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Corporation Service Company (CSC) 19 West 44th Street, Suite 200 New York, NY 1000510036 (Name and address of agent for service) (800) 927-9800 With a copy to Randal R. Jones Dorsey & Whitney LLP 701 Fifth Avenue, Suite 6100 Seattle, WA 98104 (206) 903-8800 |
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☒ | ||
| Non-accelerated filer ☐ (Do not check if a smaller reporting company) Smaller reporting company ☐ | |||
| 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. ☐
STATEMENT UNDER GENERAL INSTRUCTION E TO FORM S-8
Pursuant to General Instruction E of Form S-8, Ballard Power Systems Inc. (the “Registrant” or the “Company”), is filing this Registration Statement on Form S-8 (the “Registration Statement”) for the purpose of registering an additional 6,000,000 shares of the Registrant’s common shares, no par value (the “Common Shares”), that may be issued pursuant to the Registrant’s Consolidated Share Option Plan (the “Option Plan”) or the Registrant’s Consolidated Share Distribution Plan (the “Distribution Plan”, and together with the Option Plan, the “Plans”) pursuant to “evergreen” provisions contained therein.
These additional Common Shares are securities of the same class as other securities for which the registration statement on Form S-8 has been previously filed with the Securities and Exchange Commission (the “Commission”), which is described below.
These additional Common Shares have become reserved for issuance as a result of the operation of the “evergreen” provision in the Plans.
The Registrant’s Form S-8 Registration Statement filed with the Commission on June 7, 2018 (File No. 333-225494) which relates to the Plans, is incorporated herein by reference and made a part hereof.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are hereby incorporated in this registration statement by reference:
| (a) | The Annual Report on Form 40-F/A for the year ended December 31, 2022, filed with the Commission on March 17, 2023; |
| (b) | All other reports filed by the Registrant under Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since December 31, 2022; and |
| (c) | The description of the Registrant’s securities contained in the Registrant’s registration statement on Form F-10 filed with the Commission on December 11, 2002, including any amendment or report filed for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Section 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, 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 8. Exhibits.
The Registrant. 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 Burnaby, Province of British Columbia, Canada, on this 9th day of May, 2023.
| BALLARD POWER SYSTEMS INC. | ||
| By: | /s/ R. Randall MacEwen | |
| Name: R. Randall MacEwen | ||
| Title: President & Chief Executive Officer | ||
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints R. Randall MacEwen and Paul Dobson, or either of them, as the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments), exhibits thereto, and other documents in connection therewith to this registration statement and any related registration statements necessary to register additional securities and to file the same with exhibits thereto and other documents in connection therewith with the 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 each of said attorney-in-fact and agent, 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/ R. Randall MacEwen | President, Chief Executive Officer and Director | May 9, 2023 | |
| R. Randall MacEwen | (Principal Executive Officer) | ||
| /s/ Paul Dobson | Senior Vice President and Chief | May 9, 2023 | |
| Paul Dobson | Financial Officer (Principal Financial | ||
| Officer and Principal Accounting Officer) | |||
| /s/ Douglas P. Hayhurst | Director | May 9, 2023 | |
| Douglas P. Hayhurst | |||
| /s/ Marty Neese | Director and Authorized United States Representative | May 9, 2023 | |
| Marty Neese | |||
| /s/ James Roche | Director | May 9, 2023 | |
| James Roche | |||
| /s/ Janet Woodruff | Director | May 9, 2023 | |
| Janet Woodruff | |||
| /s/ Kui Jiang | Director | May 9, 2023 | |
| Kui Jiang | |||
| /s/ Shaojun Sun | Director | May 9, 2023 | |
| Shaojun Sun | |||
| /s/ Kathleen Bayless | Director | May 9, 2023 | |
| Kathleen Bayless | |||
| /s/ Hubertus M. Mühlhäuser | Director | May 9, 2023 | |
| Hubertus M. Mühlhäuser |
Exhibit 5.1
May 9, 2023
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Ballard Power Systems Inc. |
Dear Sirs/Mesdames:
We have acted as Canadian counsel to Ballard Power Systems Inc. (the "Company"), a British Columbia company, in connection with the registration statement on Form S-8 (the "Registration Statement") filed on the date hereof with the United States Securities and Exchange Commission under the United States Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of an additional 6,000,000 common shares without par value in the capital of the Company (the "Plan Shares"), which may be issued to participants pursuant to awards granted or that may be granted under (i) the Company's Consolidated Share Option Plan (the "Option Plan") and (ii) the Company's Consolidated Share Distribution Plan (the "Share Distribution Plan", and together with the Option Plan, the "Plans").
We understand that the Company has issued options under the Option Plan entitling the holders thereof to acquire certain Plan Shares (the "Outstanding Plan Shares") and that the Company may issue additional options or deferred share units or performance share units under the Plans to acquire additional Plan Shares (the "Available Plan Shares").
For the purposes of this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Registration Statement, the Plans, the form of grant agreement representing the options issued under the Option Plan (the "Certificates"). We have assumed that the actual agreements representing the options issued under the Option Plan are in the same form as the forms provided to us for review referenced above. For the purposes of this opinion, we have also relied upon the certificate of an officer of the Company as to factual matters (the "Officer's Certificate") and certifying among other things:
| (a) | the certificate of incorporation, articles and notice of articles of the Company; and |
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| (b) | certain resolutions passed by the Board and the compensation committee of the Company relating to the Registration Statement, the Plans, and the options issued under the Option Plan; |
and have reviewed such other documents, and have considered such questions of law, as we have deemed relevant and necessary as a basis for the opinions hereinafter expressed.
We have relied upon the Registration Statement, the Plans, the Certificates and the Officer's Certificate without independent investigation of the matters provided for therein for the purpose of providing our opinions expressed below. We have not conducted any independent enquiries or investigations in respect of the opinions provided hereunder.
In examining the Officer's Certificate and in providing our opinions below we have assumed that: all individuals had the requisite legal capacity; all signatures are genuine; all documents submitted to us as originals are complete and authentic and all photostatic, certified, telecopied, notarial or other copies conform to the originals; all facts set forth in the official public records, certificates and documents supplied by public officials or otherwise conveyed to us by public officials are complete, true and accurate; all facts set forth in the Officer's Certificate are complete, true and accurate.
Our opinions are expressed only with respect to the laws of the Province of British Columbia and the laws of Canada applicable therein. We express no opinion as to any effect of U.S. federal, state, municipal or other laws. Our opinions are expressed with respect to the laws in effect on the date of this opinion and we do not accept any responsibility to take into account or inform the addressee, or any other person authorized to rely on this opinion, of any changes in law, facts or other developments subsequent to this date that do or may affect the opinions we express, nor do we have any obligation to advise you of any other change in any matter addressed in this opinion or to consider whether it would be appropriate for any other person other than the addressee to rely on our opinion.
Where our opinion below refers to the Plan Shares as being "fully-paid and non-assessable", such opinion assumes that all required consideration (in whatever form) has been or will be paid to or provided to the Company. No opinion is expressed as to the adequacy of any consideration received.
Based upon and subject to the foregoing and to the qualifications set forth herein, we are of the opinion that:
| 1. | The issuance of the Outstanding Plan Shares has been duly and properly authorized, and the Outstanding Plan Shares will, upon the due and proper exercise of options in accordance with the terms of the Option Plan, be validly issued as fully paid and non-assessable common shares of the Company; and |
| 2. | The Available Plan Shares will, upon: |
| a. | the grant of one or more options under the Plans, the allotment for issuance of Available Plan Shares under such options, and the fixing of a price for such Available Plan Shares in accordance with the applicable Plans, by the board of directors of the Company (the "Board") and receipt by the Company of payment in full for each such Available Plan Share to be issued and the issuance of such Available Plan Shares in accordance with the terms of the applicable Plans; and/or |
| b. | the grant of one or more deferred share units or performance share units under the Plans, the allotment for issuance of Available Plan Shares pursuant to such deferred share units or performance share units by the Board and the issuance of such Available Plan Shares in accordance with the terms of the applicable Plans, |
will be duly and properly authorized and be validly issued as fully paid and non-assessable common shares of the Company.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not agree that we come within the category of persons whose consent is required by the Securities Act or the rules and regulations promulgated thereunder.
Yours truly,
/s/ Stikeman Elliott LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Ballard Power Systems Inc.
We, consent to the use of our report dated March 16, 2023, on the consolidated financial statements of Ballard Power Systems Inc., which comprise the consolidated statements of financial position as at December 31, 2022 and December 31, 2021, the related consolidated statements of loss and comprehensive income (loss), changes in equity and cash flows for each of the years in the two-year period ended December 31, 2022, and the related notes, and our report dated March 16, 2023 on the effectiveness of internal control over financial reporting as of December 31, 2022 which are incorporated by reference in the Registration Statement on Form S-8 dated May 9, 2023 of Ballard Power Systems Inc.
/s/ KPMG LLP
May 9, 2023
Vancouver, Canada
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Ballard Power Systems Inc.
(Exact Name of Registrant as Specified in its Charter)
Table1 – Newly Registered Securities
| Security Type | Security Class Title |
Fee Calculation Rule |
Amount Registered(1) |
Proposed Maximum Offering Price per Unit(2) |
Maximum Aggregate Offering Price |
Fee Rate | Amount of Registration Fee |
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| Equity | Common Shares (no par value) (3) | Rule 457(c) and Rule 457(h)(2) | 6,000,000(3) | $4.50 | $ | $110.20 per $1,000,000 | $ | 2,975.40 | ||||||||||||||||
| Total Offering Amounts | $ | $110.20 per $1,000,000 | $ | 2,975.40 | ||||||||||||||||||||
| Total Fee Offsets | — | |||||||||||||||||||||||
| Net Fee Due | $ | 2,975.40 | ||||||||||||||||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction. |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h)(1) and 457(c). The proposed maximum aggregate offering price is based upon (a) the exercise prices for outstanding options under the Consolidated Share Option Plan (the “Option Plan”) and (b) the average of the high and low prices of the common shares reported on NASDAQ on May 5, 2023 for common shares reserved for future option issuances under the Option Plan and for common shares reserved for issuance under the Consolidated Share Distribution Plan (the “Distribution Plan”). |
| (3) | Represents common shares, without par value, issuable pursuant to the Option Plan and the Distribution Plan. |