What changed in this filing

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Item 5. Other Information

2022-05-09 compared with 2021-11-15 · 82 added, 119 removed, 27 unchanged (88% of the section changed)

OTHER INFORMATION.

The following summarizes the effect of the Restatement on each line item set forth below in the unaudited pro forma condensed combined financial information previously filed with our Current Report on form 8-K, as amended, filed with the SEC on September 15, 2021 for each period presented.

Unaudited Pro Forma Condensed Consolidated Balance Sheets

As of June 30, 2021

(Amounts in U.S.

Accounts payable and accrued liabilities

As previously reported

Adjustments 1

Total liabilities

As previously reported

Adjustments 1

Additional paid in capital

As previously reported

Adjustments 2

As previously reported

Adjustments 1,2

Total shareholders' equity

As previously reported

Adjustments 1

Reflects increase of $2.7 million in exploration expenses for the six months ended June 30, 2021 to accrue for certain exploration invoices as at June 30, 2021.

Reflects decrease of $1.5 million of stock-based compensation expenses for the six months ended June 30, 2021.

Unaudited Pro Forma Condensed Consolidated Statement of Operations

For the six months ended June 30, 2021

(Amounts in U.S.

dollars, except per share data)

Exploration expenses

As previously reported

Adjustments 1,2

General and administrative expenses

As previously reported

Adjustments 3

Operating loss

As previously reported

Adjustments 1,2,3

(Income) loss for the period

As previously reported

Adjustments 1,2,3

Comprehensive (income) loss for the period

As previously reported

Adjustments 1,2,3

(Income) loss per share - Basic and diluted

As previously reported

Adjustments 1,2,3

Reflects decrease of $1.1 million for the six months ended June 30, 2021 related to stock-based compensation expense.

Reflects increase of $2.7 million to accrue for certain exploration invoices for the six months ended June 30, 2021.

Reflects decrease of $0.5 million for the six months ended June 30, 2021 related to stock-based compensation expense.

We recently entered into amended and restated employment agreements with each of Craig Shesky, our Chief Financial Officer, and Anthony O’Sullivan, our Chief Development Officer.

In addition, we, through one of our subsidiaries, expects to enter into an amended and restated employment agreement with Erika Ilves, our Chief Strategy Officer, on substantially similar terms as the amended and restated employment agreements with Messrs.

Shesky and O ’ Sullivan, except with respect the amount of her annual base salary and entitlement to a signing payment.

Craig Shesky – Chief Financial Officer

On May 6, 2022, our subsidiary, DeepGreen Resources, LLC, entered into an amended and restated employment agreement with Mr.

Shesky in connection with his continued role as our Chief Financial Officer (the “ Shesky Employment Agreement ” ).

Under the Shesky Employment Agreement, Mr.

Shesky will receive an annual base salary of $350,000, which will be reviewed annually by our Chief Executive Officer.

Shesky is also entitled to a signing payment in the amount of $91,667 under the Shesky Employment Agreement.

In addition, Mr.

Shesky is eligible to participate in our Long-Term Incentive Plan, or LTIP, subject to the combination of his achieving certain individual performance objectives, and achievement of certain company-based financial results.

Shesky is eligible to participate in our benefit plans and to be considered for an annual performance incentive bonus targeted at 50% of his annual base salary, to be granted at the discretion of the board of directors on a year-to-year basis (the “ Shesky Employment Bonus ” ).

The Shesky Employment Agreement has an indefinite term.

In general, during his employment and for a period of six months thereafter, Mr.

Shesky is prohibited from (a) competing with us within North America;

(b) soliciting our customers for a competing business;

and (c) soliciting our employees for a competing business.

In the event that Mr.

Shesky ’ s employment is terminated without “ Cause ” as defined in the Shesky Employment Agreement or if Mr.

Shesky resigns for “ Good Reason ” as defined in the Shesky Employment Agreement, Mr.

Shesky will receive (a) a payment equal to 6 months of his then annual base salary plus a pro-rata portion of the Shesky Employment Bonus;

(b) subject to the approval of the board of directors, an extension of the expiry up to 12 months from the termination date of options that vest based on the achievement of certain company-based milestones;

and (c) continued payment of the premiums required to maintain Mr.

Shesky ’ s participation in the benefits plans in which he participates for the minimum period required by applicable law.

In the event that Mr.

Shesky ’ s employment is terminated without “ Cause ” or if Mr.

Shesky resigns for “ Good Reason ” following the resignation, termination, or replacement of our Chief Executive Officer, Mr.

Shesky will receive (a) a payment equal to 9 months of his then base salary in lieu of notice plus 1 month ’ s pay in lieu of notice for each completed year of service following the start date to a maximum of 18 months;

(b) allowance for the immediate vesting of all unvested restricted stock units that would have vested during the 12 month period following the termination date;

(c) subject to the approval of the board of directors, extension of the expiry up to 12 months from the termination date of options that vest based on the achievement of certain company-based milestones;

(d) pro-rata payment of the Shesky Employment Bonus;

and (e) continued payment of the premiums required to maintain Mr.

Shesky ’ s participation in the benefits plans in which he participates for the minimum period required by applicable law.

In the event that, within 24 months following a “ Change of Control ” as defined in the Shesky Employment Agreement, Mr.

Shesky ’ s employment is terminated without “ Cause ” or if Mr.

Shesky resigns for “ Good Reason ” , Mr.

Shesky will receive (a) a payment equal to 12 months of his then annual base salary;

(b) 1.5 times the Shesky Employment Bonus paid for the previous year;

and (c) immediate vesting of all unvested equity awards, subject to Mr.

Shesky agreeing that the non-competition period described above be extended to 12 months from the date of termination.

The foregoing summary of the terms and conditions of the Shesky Employment Agreement is not complete and is qualified in its entirety by reference to the full text of the Shesky Employment Agreement, which is filed with this Quarterly Report on Form 10-Q as Exhibit 10.2 and incorporated herein by reference.

Anthony O’Sullivan – Chief Development Officer

On May 8, 2022, our subsidiary, The Metals Company Australia Pty.

Ltd, entered into an amended and restated employment agreement with Mr.

O’Sullivan in connection with his continued role as our Chief Development Officer (the “O’Sullivan Employment Agreement”).

Under the O’Sullivan Employment Agreement, Mr.

O’Sullivan will receive an annual base salary of $670,985 AUD

($475,000 USD), which will be reviewed annually by our Chief Executive Officer.

In addition, O’Sullivan is eligible to participate in our LTIP, subject to the combination of his achieving certain individual performance objectives, and achievement of certain company-based financial results.

O’Sullivan is eligible to participate in our benefit plans and to be considered for an annual performance incentive bonus targeted at 50% of his annual base salary, to be granted at the discretion of the board of directors on a year-to-year basis (the “O’Sullivan Employment Bonus”).

The O’Sullivan Employment Agreement has an indefinite term.

In general, during his employment and for a period of six months thereafter, Mr.

O’Sullivan is prohibited from (a) competing with us within Australia;

(b) soliciting our customers for a competing business;

and (c) soliciting our employees for a competing business.

In the event that Mr.

O’Sullivan’s employment is terminated without “Cause” as defined in the O’Sullivan Employment Agreement or if Mr.

O’Sullivan resigns for “Good Reason” as defined in the O’Sullivan Employment Agreement, Mr.

O’Sullivan will receive (a) a payment equal to a pro-rata portion of the O’Sullivan Employment Bonus;

and (c) continued payment of the premiums required to maintain Mr.

O’Sullivan’s participation in the benefits plans in which he participates for the minimum period required by applicable law.

In the event that Mr.

O’Sullivan’s employment is terminated without “Cause” or if Mr.

O’Sullivan resigns for “Good Reason” following the resignation, termination, or replacement of our Chief Executive Officer, Mr.

O’Sullivan will receive (a) a payment equal to 9 months of his then base salary in lieu of notice plus 1 month’s pay in lieu of notice for each completed year of service following the start date to a maximum of 18 months;

(b) allowance for the immediate vesting of all unvested restricted stock units that would have vested during the 12 month period following the termination date;

(d) pro-rata payment of the O’Sullivan Employment Bonus;

and (e) continued payment of the premiums required to maintain Mr.

O’Sullivan’s participation in the benefits plans in which he participates for the minimum period required by applicable law.

In the event that, within 24 months following a “Fundamental Change” as defined in the O’Sullivan Employment Agreement, Mr.

O’Sullivan’s employment is terminated without “Cause”, Mr.

O’Sullivan will receive (a) a payment equal to 12 months of his then annual base salary;

(b) 1.5 times the O’Sullivan Employment Bonus paid for the previous year;

and (c) immediate vesting of all unvested equity awards, subject to Mr.

O’Sullivan agreeing that the non-competition period described above be extended to 12 months from the date of termination.

The foregoing summary of the terms and conditions of the O’Sullivan Employment Agreement is not complete and is qualified in its entirety by reference to the full text of the O’Sullivan Employment Agreement, which is filed with this Quarterly Report on Form 10-Q as Exhibit 10.3 and incorporated herein by reference .

The following exhibits are filed as part of, or incorporated by reference into, this Quarterly Report on Form 10-Q.

3 unchanged sentences

SEC File/ Reg.

Notice of Articles of TMC the metals company Inc.

Form 8-K (Exhibit 3.1)

Articles of TMC the metals company Inc.

Form 8-K (Exhibit 3.2)

TMC the metals company Inc.

Common Share Certificate

Form 8-K (Exhibit 4.1)

Warrant to Purchase Common Shares issued by DeepGreen Metals Inc.

to Allseas Group S.A.

on March 4, 2021

Form S-4 (Exhibit 4.4)

Amended and Restated Registration Rights Agreement, by and between Sustainable Opportunities Acquisition Corp., Sustainable Opportunities Holdings LLC, the parties listed under Sponsor Group Holders on the signature page(s) thereto and the parties listed under DeepGreen Holders on the signature page(s) thereto

Form S-4/A (Exhibit 10.5 – Annex H)

Strategic Alliance Agreement, dated as of March 29, 2019, by and between DeepGreen Metals Inc.

and Allseas Group S.A.

Form S-4 (Exhibit 10.7)

Pilot Mining Test Agreement dated as of July 8, 2019, by and between DeepGreen Metals Inc.

and Allseas Group S.A.

Form S-4 (Exhibit 10.8)

Third Amendment to Pilot Mining Test Agreement and First Amendment to Strategic Alliance Agreement, dated as of March 4, 2021, by and between DeepGreen Metals Inc.

and Allseas Group S.A.

Form S-4 (Exhibit 10.9)

Fourth Amendment to Pilot Mining Test Agreement and Second Amendment to Strategic Alliance Agreement, dated as of June 30, 2021, by and between DeepGreen Metals Inc.

and Allseas Group S.A.

Form S-4/A (Exhibit 10.23)

Investment and Participation Agreement, dated as of March 15, 2017, by and among DeepGreen Metals Inc., Maersk Supply Service NS, and Maersk Supply Service Subsea UK Limited

Form S-4 (Exhibit 10.10)

Project Management Framework Agreement, dated as of April 6, 2018, by and among Nauru Ocean Resources Inc.

and Maersk Supply Service Integrated Solutions A/S

Form S-4 (Exhibit 10.11)

Letter Agreement, dated as of March 3, 2021, by and among DeepGreen Metals Inc., Maersk Supply Service NS, and Maersk Supply Service Subsea UK Limited

Form S-4 (Exhibit 10.12)

Sponsorship Agreement, dated as of March 8, 2008, by and between the Kingdom of Tonga and Tonga Offshore Mining Limited

Form S-4 (Exhibit 10.13)

Sponsorship Agreement, dated as of September 23, 2021, by and between the Kingdom of Tonga and Tonga Offshore Mining Limited

Form S-1 (Exhibit 10.13)

Sponsorship Agreement, dated as of June 5, 2017, by and among the Republic of Nauru, the Nauru Seabed Minerals Authority, and Nauru Ocean Resources Inc.

Form S-4 (Exhibit 10.14)

Certificate of the Sponsorship signed by the Government of Nauru on April 11, 2011

Form S-4/A (Exhibit 10.24)

ISA Contract for Exploration (Republic of Nauru) dated as of July 22, 2011

Form S-4 (Exhibit 10.15)

ISA Contract for Exploration (Kingdom of Tonga) dated as of January 11, 2012

Form S-4 (Exhibit 10.16)

Form of Indemnity Agreement

Form 8-K (Exhibit 10.18)

Nonemployee Director Compensation Policy

Non-Binding Memorandum of Understanding, dated March 14, 2022, by and between TMC the metals company Inc.

and Epsilon Carbon Pvt.

Form 8-K (Exhibit 10.1)

Employment Agreement, dated January 1, 2018, by and between DeepGreen Metals Inc.

and Gerard Barron

Form S-4/A (Exhibit 10.17)

Employment Agreement, dated July 25, 2017, by and between DeepGreen Metals Inc.

Amended and Restated Employment Agreement, dated May 6, 2022, by and between DeepGreen Resources, LLC and Craig Shesky

Amended and Restated Employment Agreement, dated May 8, 2022, by and between The Metals Company Australia Pty.

and Anthony O’Sullivan

Form S-4/A (Exhibit 10.18)

Employment Agreement, dated September 1, 2018, by and between DeepGreen Metals Inc.

and Erika Ilves

Form S-4/A (Exhibit 10.19)

TMC the metals company Inc.

2021 Incentive Equity Plan

Form 8-K (Exhibit 10.23.1)

Form of Stock Option Agreement under TMC the metals company Inc.

2021 Incentive Equity Plan

Form 8-K (Exhibit 10.23.2)

Form of Restricted Stock Unit Agreement under TMC the metals company Inc.

2021 Incentive Equity Plan

Form 8-K (Exhibit 10.23.3)

DeepGreen Metals Inc.

Stock Option Plan and form of Stock Option Agreement thereunder

Form S-4/A (Exhibit 10.20)

Amendment to DeepGreen Metals Inc.

Stock Option Plan

Form S-4/A (Exhibit 10.21)

Certification of the Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

6 unchanged sentences

Inline XBRL Taxonomy Extension Label Linkbase Document

Inline XBRL Taxonomy Extension Presentation Linkbase Document

Cover Page Interactive Data File (embedded within the Inline XBRL document)

† Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit.

4 unchanged sentences

TMC THE METALS COMPANY INC.

November 15, 2021

/s/ Gerard Barron

1 unchanged sentence

Chief Executive Officer

November 15, 2021

/s/ Craig Shesky

1 unchanged sentence

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 5. Other Information