PYROGENESIS CANADA INC.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
40-F
OR
For the fiscal year ended
Commission File Number:
N/A
(Province or Other Jurisdiction
of Incorporation or
Organization)
(Primary Standard
Industrial Classification Code)
(I.R.S. Employer Identification
No.)
,
,
CANADA
Attention:
Chief Executive Officer
Tel:
-
-
937-0002
National Registered Agents, Inc.
,
Tel:
-
572-3133
Securities registered or to be registered pursuant to section 12(b) of the Act:
Name of Each Exchange on Which
Title of Each Class
Trading Symbol(s)
Registered:
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
For annual reports, indicate by check mark the information filed with this Form:
Indicate the number of outstanding shares of each of the Registrant’s classes of capital or common stock as of the close of the period covered by the annual report:
Title of Each Class
Number of outstanding shares
Common Shares, no par value
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months
(or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes
☒
☐
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant
was required to submit and post such files).
Yes
☒
☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 12b-2 of the Exchange Act.
Emerging growth company
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, 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 13(a) of the Exchange Act.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over
financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
2
EXPLANATORY NOTE
PyroGenesis Canada Inc. (the “Company” or the “Registrant”) is a Canadian issuer that is permitted, under the
multijurisdictional disclosure system adopted in the United States, to prepare this Annual Report on Form 40-F pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in accordance with Canadian
disclosure requirements. The Company is a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act. Equity
securities of the Company are accordingly exempt from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act
pursuant to Rule 3a12-3.
FORWARD LOOKING STATEMENTS
This Annual Report, including the exhibits attached hereto and incorporated herein may contain “forward-looking
statements” within the meaning of applicable Canadian and United States securities laws. All statements other than
statements of historical fact are forward-looking statements. The forward-looking statements contained in this Annual Report
are made only as of the date hereof. The forward-looking statements contained in the exhibits incorporated by reference
into this Annual Report are made only as of the respective dates set forth in such exhibits. The Registrant does not have,
or undertake, any obligation to update or revise any forward -looking statements whether as a result of new information,
subsequent events or otherwise, unless otherwise required by law.
Generally, forward-looking information can be identified by the use of forward-looking terminology such as “plans”, “expects”
or “does not expect”, “is expected”, “budget”, “scheduled”, “estimates”, “forecasts”, “intends”, “anticipates” or “does not
anticipate”, or “believes”, or variations of such words and phrases or statements that certain actions, events or results “may”,
“could”, “would”, “might” or “will be taken”, “occur” or “be achieved”. Forward-looking statements are based on a number of
material assumptions, which management of the Registrant believe to be reasonable, including, but not limited to, the
Registrant’s ability to generate sufficient cash flow from operations and obtain financing, if needed, on acceptable terms or
at all; the general economic, financial market, regulatory and political conditions in which the Registrant operates; the
interest of potential purchasers in the Registrant’s products; anticipated and unanticipated costs; the government regulation
of the Registrant’s activities and products; the timely receipt of any required regulatory approvals; the Registrant’s ability to
obtain qualified staff, equipment and services in a timely and cost efficient manner; the Registrant’s ability to conduct
operations in a safe, efficient and effective manner; and the Registrant’s expansion plans and timeframe for completion of
such plans
Forward-looking information is subject to known and unknown risks, uncertainties and other factors that may cause the
actual results, level of activity, performance or achievements of the Registrant to be materially different from those
expressed or implied by such forward-looking information. Although the Registrant has attempted to identify important
factors that could cause actual results to differ materially from those contained in forward-looking statements, there may be
other factors that cause results not to be as anticipated, estimated, intended or projected. There is no assurance that such
statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in
such statements. Accordingly, readers should not place undue reliance on forward-looking statements. Readers should
carefully consider the maters as further discussed under the heading "Risk Factors" in the Registrant’s Annual Information
Form for the year ended December 31, 2020, which is filed as Exhibit 99.1 hereto and incorporated by reference herein
The forward-looking statements contained in, or incorporated by reference into, this Form 40-F are made as of the date of
this Form 40-F or as otherwise specified. Except as required by applicable securities law, the Registrant undertakes no
obligation to update publicly or otherwise revise any forward -looking statements or the foregoing list of factors affecting
those statements, whether as a result of new information, future events or otherwise or the foregoing lists of factors affecting
this information. All forward-looking statements contained in this Form 40-F are expressly qualified in their entirety by this
cautionary statement.
DIFFERENCES IN UNITED STATES AND CANADIAN REPORTING PRACTICES
The Registrant is permitted, under a multijurisdictional disclosure system adopted by the United States, to prepare this
report in accordance with Canadian disclosure requirements, which are different from those of the United States. The
Registrant prepares its financial statements, which are filed with this Form 40-F in accordance with International Financial
Reporting Standards as issued by the International Accounting Standards Board.
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PRINCIPAL DOCUMENTS
Annual Information Form
The Registrant’s Annual Information Form for the fiscal year ended December 31, 2022 is filed as Exhibit 99.1 and
incorporated by reference in this Annual Report on Form 40-
F.
Audited Annual Financial Statements
The audited consolidated financial statements of the Registrant for the fiscal year ended December 31, 2022, including the
Independent Auditor’s Report with respect thereto, are filed as Exhibit 99.3 and incorporated by reference in this Annual
Report on Form 40-
F.
Management Discussion and Analysis
The Registrant’s Management Discussion and Analysis for the fiscal year ended December 31, 2022 is filed as Exhibit 99.2
and incorporated by reference in this Annual Report on Form 40-
F.
CERTIFICATIONS AND DISCLOSURES REGARDING CONTOLS AND PROCEDURES
Certifications
The required certifications are attached hereto as Exhibits 99.4, 99.5, 99.6, and 99.7.
Disclosure Controls and Procedures
The information provided in the section entitled “Controls and Procedures” under the sub-heading “Disclosure Controls and
Procedures” contained in the 2022 MDA filed as Exhibit 99.2 to this Annual Report on Form 40-F is incorporated by
reference herein.
Management’s Annual Report on Internal Control over Financial Reporting
The information provided in the section entitled “Controls and Procedures” under the sub-headings “Management’s Annual
Report on Internal Controls over Financial Reporting and Remediation Plan” contained in the 2022 MDA filed as
Exhibit 99.2 to this Annual Report on Form 40-F is incorporated by reference herein.
Attestation Report of Independent Auditor
In accordance with the United States Jumpstart Our Business Startup Act (the “JOBS Act”) enacted on April 5, 2012, the
Registrant qualifies as an “emerging growth company” (an “EGC”), which entitles the Registrant to take advantage of certain
exemptions from various reporting requirements that are applicable to other public companies that are not EGCs.
Specifically, the JOBS Act defers the requirement to have the Registrant’s independent auditor assess the Registrant’s
internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act. As such, the Registrant is
exempted from the requirement to include an auditor attestation report in this Form 40-F for so long as the Registrant
remains an EGC, which may be for as long as five years following its initial registration in the United States.
Changes in Internal Control over Financial Reporting
The information provided in the section entitled “Controls and Procedures” under the sub-heading “Changes in Internal
Controls over Financial Reporting” contained in the 2022 MDA filed as Exhibit 99.2 to this Annual Report on Form 40-F is
incorporated by reference herein.
NOTICES PURSUANT TO REGULATION BTR
The Registrant was not required by Rule 104 of Regulation BTR to send any notices to any of its directors or executive
officers during the fiscal year ended December 31, 2022.
AUDIT COMMITTEE FINANCIAL EXPERT
The board of directors of the Registrant has determined that Mr. Andrew Abdalla, the chair of the Registrant’s audit
committee, qualifies as an audit committee financial expert for purposes of paragraph (8) of General Instruction B to
4
Form 40-F. The board of directors has further determined that Mr. Abdalla is also independent, as that term is defined in
the corporate governance requirements of the Nasdaq Capital Market (“Nasdaq”). The Commission has indicated that the
designation of Mr. Abdalla as an audit committee financial expert does not make him an "expert" for any purpose, impose
any duties, obligations or liabilities on him that are greater than those imposed on members of the audit committee and the
board of directors who do not carry this designation or affect the duties, obligations or liabilities of any other member of the
audit committee or the board of directors.
CODE OF ETHICS
The Registrant has adopted a written Code of Business Conduct and Ethics (the "Code") that is applicable to all employees,
contractors, consultants, officers and directors of the Registrant, and is filed as an exhibit to this Annual Report on
Form 40-
F.
All departures from, all amendments to the Code, and all waivers of the Code with respect to any of the senior officers
covered by it, which waiver may be made only by the board of directors of the Registrant in respect of senior officers, will
be disclosed as required. The Code is located on the Registrant’s website at www.pyrogenesis.com. Information contained
in or otherwise accessible through the Registrant’s website does not form part of this Form 40-F, and is not incorporated
into this Form 40-F by reference.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The fees paid to the independent auditor are included under the heading "Audit Committee - External Fees by Audit
Category" in the AIF, which is filed as Exhibit 99.1 hereto and incorporated by reference herein.
The Registrant’s audit committee has adopted a pre-approval policy. Under this policy, all non-audit services must be pre-
approved by the Audit Committee. The Registrant did not rely on the de minimis exemption provided by
Section (c)(7) (i)(C) of Rule 2-01 of Regulation S-X.
OFF-BALANCE SHEET ARRANGEMENTS
The Registrant has not entered into any “off-balance sheet arrangements”, that have or are reasonably likely to have a
current or future effect on the Registrant’s financial condition, changes in financial condition, revenues, expenses, results
of operations, liquidity, capital expenditures or capital resources that are material to investors.
CONTRACTUAL OBLIGATIONS
Below is a tabular disclosure of the Registrant’s contractual obligations at December 31, 2022:
Total
Carrying
contractual
Less than
value
amount
one year
2-3 years
4-5 years
$
$
$
$
$
$
Bank indebtedness
991,902
991,902
991,902
—
—
—
Accounts payable and
accrued liabilities
9,620,591
9,620,591
9,620,591
—
—
—
Term loans
389,987
520,444
59,917
190,587
180,000
89,940
Balance due on
business combination
3,907,775
4,137,820
2,177,800
1,960,020
—
—
Lease liabilities
5,533,694
6,745,329
2,984,243
1,165,281
703,816
1,891,989
20,443,949
22,016,086
15,834,453
3,315,888
883,816
1,981,929
IDENTIFICATION OF THE AUDIT COMMITTEE
The Registrant’s Board of Directors has a separately designated standing Audit Committee established in accordance with
Section 3(a)(58)(A) of the Exchange Act. The members of the Audit Committee are Andrew Abdalla (Chair of the
Committee), Robert Radin and Ben Naccarato.
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MINE SAFETY DISCLOSURE
Not applicable
NASDAQ STATEMENT OF CORPORATE GOVERNANCE DIFFERENCES
The Registrant is a “foreign private issuer” as defined in Rule 3b-4 under Exchange Act and its common shares are listed
on Nasdaq and the Toronto Stock Exchange (the “TSX”). Rule 5615(a)(3) of Nasdaq Stock Market Rules permits foreign
private issuers to follow home country practices in lieu of certain provisions of Nasdaq Stock Market Rules. A foreign private
issuer that follows home country practices in lieu of certain provisions of Nasdaq Stock Market Rules must disclose ways in
which its corporate governance practices differ from those followed by domestic companies either on its website or in the
annual report that it distributes to shareholders in the United States. A description of the ways in which the Registrant’s
governance practices differ from those followed by domestic companies pursuant to Nasdaq Stock Market Rules are as
follows:
Majority Independent Directors
: The Registrant does not follow Nasdaq Stock Market Rule 5605(b)(1), which requires
listed companies to have a majority of the board of directors comprised of “Independent Directors” as defined in Nasdaq
Stock Market Rule 5605(a)(2). In lieu of following Nasdaq Stock Market Rule 5605(b)(1), the Registrant follows the rules of
the TSX.
Executive Sessions
: The Registrant does not follow Nasdaq Stock Market Rule 5605(b)(2), which requires listed
companies to have their Independent Directors regularly schedule meetings at which only Independent Directors are
present. In lieu of following Nasdaq Stock Market Rule 5605(b)(2), the Registrant follows the rules of the TSX.
Audit Committee Charter
: The Registrant does not follow Nasdaq Stock Market Rule 5605(c)(1), which requires listed
companies to adopt a formal written audit committee charter that specifies the scope of its responsibilities and the means
by which it carries out those responsibilities; the outside auditor's accountability to the audit committee; and the audit
committee's responsibility to ensure the independence of the outside auditor. In lieu of following Nasdaq Stock Market Rule
5605(c)(1), the Registrant follows the rules of the TSX.
Compensation Committee Charter
: The Registrant does not follow Nasdaq Stock Market Rule 5605(d)(1), which requires
listed companies to adopt a formal written compensation committee charter and have a compensation committee review
and reassess the adequacy of the charter on an annual basis. In lieu of following Nasdaq Stock Market Rule 5605(d)(1),
the Registrant follows the rules of the TSX.
Composition of Compensation Committee
: The Registrant does not follow Rule Nasdaq Stock Market 5605(d)(2), which
requires listed companies to have a compensation committee comprised of at least two members, with each member being
an Independent Director as defined under Nasdaq Stock Market Rule 5605(a)(2). In lieu of following Nasdaq Stock Market
Rule 5605(d)(2), the Registrant follows the rules of the TSX.
Independent Director Oversight of Director Nominations
: The Registrant does not follow Nasdaq Stock Market Rule
5605(e)(1), which requires Independent Director involvement in the selection of director nominees, by having a nominations
committee comprised solely of Independent Directors. In lieu of following Nasdaq Stock Market Rule 5605(e)(1), the
Registrant follows the rules of the TSX.
Nominations Committee Charter
: The Registrant does not follow Nasdaq Stock Market Rule 5605(e)(2), which requires
listed companies to adopt a formal written nominations committee charter or board resolution, as applicable, addressing the
director nomination process and such related matters as may be required under the federal securities laws. In lieu of
following Nasdaq Stock Market Rule 5605(e)(2), the Registrant follows the rules of the TSX.
Shareholder Meeting Quorum Requirements
: The Registrant does not follow Nasdaq Stock Market Rule 5620(c) which
requires that the minimum quorum requirement for a meeting of shareholders be 33 1/3 % of the outstanding common
shares. In addition, Nasdaq Stock Market Rule 5620(c) requires that an issuer listed on Nasdaq state its quorum requirement
in its by-laws. In lieu of following Nasdaq Stock Market Rule 5620(c), the Registrant follows the rules of the TSX.
The foregoing is consistent with applicable laws, customs and practices in Canada.
UNDERTAKING
The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by
the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to:
6
the securities registered pursuant to Form 40-F; the securities in relation to which the obligation to file an Annual Report on
Form 40-F arises; or transactions in said securities.
DISCLOSURE REGARDING FOREIGN JURISDICTION THAT PREVENT INSPECTIONS
Not applicable.
CONSENT TO SERVICE OF PROCESS
The Registrant has previously filed with the Commission a written irrevocable consent and power of attorney on Form F-X.
Any change to the name or address of the Registrant’s agent for service shall be communicated promptly to the Commission
by amendment to the Form F-X referencing the file number of the Registrant.
The following documents are being filed with the Commission as exhibits to this Form 40-
F.
EXHIBIT INDEX
Exhibit Number
Exhibit Description
99.1
99.2
99.3
99.4
99.5
99.6
99.7
99.8
99.9
101
Interactive Data File
SIGNATURES
Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on
Form 40-F and has duly caused this Annual Report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: March 31, 2023
PYROGENESIS CANADA INC.
By:
/s/ P. Peter Pascali
P. Peter Pascali
Chief Executive Officer
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