TerrAscend Corp S-3/A, filed Jun 10, 2024
TerrAscend Corp. (TSNDF)
As filed with the Securities and Exchange Commission on June 10, 2024
Registration No. 333-278510
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
(Amendment No. 1)
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TERRASCEND CORP.
(Exact name of registrant as specified in its charter)
| Ontario | Not applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
77 City Centre Drive
Suite 501 - East Tower
Mississauga, Ontario, L5B 1M5, Canada
(717) 610-4165
(Address, including zip code, and telephone number, including area code of registrant’s principal executive offices)
Ziad Ghanem
Chief Executive Officer
TerrAscend Corp.
77 City Centre Drive
Suite 501 - East Tower
Mississauga, Ontario, L5B 1M5, Canada
(717) 610-4165
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Jason Kent Cooley LLP 55 Hudson Yards New York, NY 10001-2157 (212) 479-6000 |
Lynn Gefen Chief Legal Officer TerrAscend Corp. 77 City Centre Drive Suite 501 - East Tower Mississauga, Ontario, L5B 1M5, Canada (717) 610-4165 |
Jonathan Sherman Cassels Brock & Blackwell LLP Suite 3200, Bay Adelaide Centre - North Tower, 40 Temperance St. Toronto, Ontario, M5H 0B4, Canada (416) 869-5300 |
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
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 | ☐ | 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. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 (this “Amendment”) to the Registration Statement on Form S-3 of TerrAscend Corp. (File No. 333-278510), originally filed on April 4, 2024 (the “Registration Statement”), is being filed solely for the purpose of replacing the Exhibit 23.1 consent of independent registered public accounting firm (the “Auditor’s Consent”) previously filed with the Registration Statement with the Exhibit 23.1 Auditor’s Consent filed herewith. Accordingly, this Amendment consists only of the cover page, this explanatory note, Part II of the Registration Statement and the Auditor’s Consent filed herewith as Exhibit 23.1. This Amendment does not modify any other part of the Registration Statement.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.
| SEC registration fee |
$ | 29,520 | ||
| FINRA filing fee |
* | |||
| Accounting fees and expenses |
* | |||
| Legal fees and expenses |
* | |||
| Transfer agent fees and expenses |
* | |||
| Trustee fees and expenses |
* | |||
| Printing and miscellaneous expenses |
* | |||
|
|
|
|||
| Total |
$ | * | ||
|
|
|
| * | These fees and expenses depend on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers
Under the OBCA, the Company may indemnify a present or former director or officer of the Company or another individual who acts or acted at the Company’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 Company or other entity. The Company may not indemnify an individual unless the individual acted honestly and in good faith with a view to the best interests of the Company, or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Company’s request and 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 conduct was lawful (the “Indemnity Conditions”). The indemnification may be made in connection with a derivative action only with court approval. The aforementioned individuals are entitled to indemnification from the Company as a matter of right if they were 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 they fulfill the Indemnity Conditions. The Company may advance moneys to the individual for the costs, charges and expenses of a proceeding; however, the individual shall repay the moneys if the individual does not fulfill the Indemnity Conditions.
The by-laws of the Company provide that, subject to the OBCA, the Company shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Company’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 Company or other entity, if the individual acted honestly and in good faith with a view to the best interests of the Company, or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Company’s request, and 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 such person’s conduct was lawful. The by-laws
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of the Company further obligate the Company to advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to above, subject to the repayment of these moneys if the individual does not fulfil the Indemnity Conditions.
The by-laws of the Company provide that the Company may, subject to the OBCA, purchase and maintain insurance for the benefit of any director, officer, or certain other persons as set out above, against any liabilities and in any amounts as the Board may determine.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Reference is made to Item 17 for the undertakings of the Company with respect to indemnification for liabilities arising under the Securities Act.
In addition, we have entered into separate indemnity agreements with all of our directors and officers. These indemnity agreements, among other things, require us to indemnify our directors and officers for certain expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of their services as a director or officer, or any other company or enterprise to which the person provides services at our request.
We have purchased and currently intend to maintain insurance on behalf of each and every person who is or was a director or officer of our company against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
Any underwriting agreement that we may enter into may provide for indemnification by any underwriters, of us, our directors, our officers who sign the registration statement and our controlling persons for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
| Exhibit | Description of Document |
Incorporation By Reference |
Filed | |||||||||
| Form |
File No. |
Exhibit |
Filing Date | |||||||||
| 1.1* | Form of Underwriting Agreement. | |||||||||||
| 3.1 | Articles of TerrAscend Corp., dated March 7, 2017. | 10-12G | 000-56363 | 3.1 | November 2, 2021 | |||||||
| 3.2 | Articles of Amendment to the Articles of TerrAscend Corp., dated November 30, 2018. | 10-12G/A | 000-56363 | 3.2 | December 22, 2021 | |||||||
| 3.3 | Articles of Amendment to the Articles of TerrAscend Corp., dated May 22, 2020. | 10-12G/A | 000-56363 | 3.3 | December 22, 2021 | |||||||
| 3.4 | By-laws of TerrAscend Corp., dated March 7, 2017. | 10-12G | 000-56363 | 3.3 | November 2, 2021 | |||||||
| 4.1# | Form of Common Share Certificate of the registrant. | S-3 | 333-278510 | 4.1 | April 4, 2024 | |||||||
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| Exhibit | Description of Document |
Incorporation By Reference |
Filed | |||||||||
| Form |
File No. |
Exhibit |
Filing Date | |||||||||
| 4.2* | Specimen Preferred Share Certificate and Form of Certificate of Designation of Preferred Shares | |||||||||||
| 4.3 | Description of Registrant’s Securities. | 10-K | 000-56363 | 4.1 | March 14, 2024 | |||||||
| 4.4# | Form of Indenture between the Registrant and one or more trustees to be named. | S-3 | 333-278510 | 4.4 | April 4, 2024 | |||||||
| 4.5* | Form of Debt Securities. | |||||||||||
| 4.6# | Form of Common Share Warrant Agreement and Warrant Certificate. | S-3 | 333-278510 | 4.6 | April 4, 2024 | |||||||
| 4.7# | Form of Preferred Share Warrant Agreement and Warrant Certificate. | S-3 | 333-278510 | 4.7 | April 4, 2024 | |||||||
| 4.8# | Form of Debt Securities Warrant Agreement and Warrant Certificate. | S-3 | 333-278510 | 4.8 | April 4, 2024 | |||||||
| 4.9* | Form of Subscription Receipt Agreement. | |||||||||||
| 4.10* | Form of Unit Agreement. | |||||||||||
| 5.1# | Opinion of Cassels Brock & Blackwell LLP. | S-3 | 333-278510 | 5.1 | April 4, 2024 | |||||||
| 5.2# | Opinion of Cooley LLP. | S-3 | 333-278510 | 5.2 | April 4, 2024 | |||||||
| 23.1 | Consent of MNP LLP. | X | ||||||||||
| 23.2# | Consent of Cassels Brock & Blackwell LLP (included in Exhibit 5.1). | S-3 | 333-278510 | 23.2 | April 4, 2024 | |||||||
| 23.3# | Consent of Cooley LLP (included in Exhibit 5.2). | S-3 | 333-278510 | 23.3 | April 4, 2024 | |||||||
| 24.1# | Power of Attorney (included on the signature page of the initial filing of this registration statement). | S-3 | 333-278510 | 24.1 | April 4, 2024 | |||||||
| 25.1** | Statement of Eligibility of Trustee under the Indenture. | |||||||||||
| 107# | Filing Fee Table | S-3 | 333-278510 | 107 | April 4, 2024 | |||||||
| * | To be filed, if applicable, by amendment or by a report filed under the Exchange Act and incorporated herein by reference. |
| ** | To be filed, if applicable, in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder. |
| # | Previously filed. |
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Item 17. Undertakings
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 of 1933;
(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 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 the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) 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 Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement or are contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date,
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supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
(7) That for purposes of determining any liability under the Securities Act of 1933, (i) the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be a part of the registration statement as of the time it was declared effective; and (ii) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offing of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange 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 of 1933 and will be governed by the final adjudication of such issue.
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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-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mississauga, Province of Ontario, Canada, on June 10, 2024.
| TERRASCEND CORP. | ||
| By: | /s/ Ziad Ghanem | |
| Name: |
Ziad Ghanem | |
| Title: |
President and Chief Executive Officer | |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Ziad Ghanem Ziad Ghanem |
President and Chief Executive Officer (Principal Executive Officer) |
June 10, 2024 | ||
| /s/ Keith Stauffer Keith Stauffer |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
June 10, 2024 | ||
| * Jason Wild |
Director | June 10, 2024 | ||
| * Ira Duarte |
Director | June 10, 2024 | ||
| * Craig Collard |
Director | June 10, 2024 | ||
| * Ed Schutter |
Director | June 10, 2024 | ||
| * Kara DioGuardi |
Director | June 10, 2024 | ||
| *By: | /s/ Keith Stauffer | |
| Keith Stauffer Attorney-in-fact |
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE OF THE REGISTRANT
Pursuant to the Securities Act, the undersigned, the duly authorized representative in the United States of TerrAscend Corp. has signed this Registration Statement on June 10, 2024.
| TERRASCEND USA, INC. | ||
| By: | /s/ Keith Stauffer | |
| Name: |
Keith Stauffer | |
| Title: |
Chief Financial Officer | |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-3, of our auditor’s report dated March 14, 2024 with respect to the consolidated financial statements of TerrAscend Corp. as at December 31, 2023 and 2022 and for each of the years in the three year period ended December 31, 2023, as included in the Annual Report on Form 10-K of TerrAscend Corp. for the year ended December 31, 2023, as filed with the United States Securities and Exchange Commission.
We also consent to the reference to our firm under the heading “Experts” in the Registration Statement on Form S-3.
/s/ MNP LLP
Chartered Professional Accountants
Licensed Public Accountants
June 10, 2024
Toronto, Canada