SMTKD SmartKem Inc (QB)

 

As filed with the Securities and Exchange Commission on April 11, 2024

Registration No. 333-        

 

  

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

  

SmartKem, Inc.

(Exact name of registrant as specified in its charter)

 

 

Delaware		85-1083654
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

Manchester Technology Center, Hexagon Tower

Delaunays Road, Blackley

Manchester, M9 8GQ U.K.

 

(Address of Principal Executive Offices) (Zip Code)

 

SmartKem, Inc. 2021 Equity Incentive Plan and

2021 United Kingdom Sub-Plan to the SmartKem, Inc. 2021 Equity Incentive Plan

(Full titles of the plans)

 

 

Ian Jenks

Chief Executive Officer

Manchester Technology Center, Hexagon Tower

Delaunays Road, Blackley

Manchester, M9 8GQ U.K.

011-44-161-721-1514

(Name, address, including zip code, and telephone number, including area code, of agent for service)  

 

 

Please send a copy of all communications to:

John D. Hogoboom, Esq.

Lowenstein Sandler LLP

1251 Avenue of the Americas

New York, New York 10020

(646) 414-6846

 

 

 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 definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer	¨		Accelerated filer	¨
Non-accelerated filer	¨		Smaller reporting company	x
			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. ¨

 

 

EXPLANATORY NOTE

 

Pursuant to General Instruction E to Form S-8 under the Securities Act, this Registration Statement is filed by SmartKem, Inc. (the “Company”) for the purpose of registering additional shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), under the Company’s 2021 Equity Incentive Plan and the UK Tax-Advantaged Sub-Plan (the “2021 Plan”).

 

At the Company’s annual meeting of stockholders held on August 25, 2023, the stockholders of the Company approved an amendment to the 2021 Plan to increase the number of shares of Common Stock authorized for issuance thereunder by 618,061 shares (the “Amendment”). 

 

In addition, the number of shares of Common Stock available for issuance under the 2021 Plan is subject to an automatic annual increase on January 1 of each year beginning in 2022 and ending on (and including) January 1, 2031 in an amount equal to the least of: 1) 65,000 shares of the Company’s common stock; 2) four percent (4%) of the outstanding shares of the Company’s common stock on the last day of the immediately preceding fiscal year; or 3) such number of shares of the Company’s common stock as the administrator of the 2021 Plan may determine. (the “Evergreen Provision”).

 

This Registration Statement registers an aggregate of 653,647 additional shares of Common Stock available for issuance under the 2021 Plan, consisting of (i) 618,061 shares of Common Stock as a result of the Amendment and (ii) 35,586 shares of Common Stock as a result of the Evergreen Provision.

 

The shares of Common Stock registered pursuant to this Registration Statement are of the same class of securities as the 65,000 shares of Common Stock (after giving effect to the Reverse Split referenced below) registered for issuance under the 2021 Plan pursuant to the currently effective Registration Statement on Form S-8 (Registration No. 333-254904) filed on March 31, 2021, the 29,205 shares of Common Stock (after giving effect to the Reverse Split) registered for issuance under the 2021 Plan pursuant to the currently effective Registration Statement on Form S-8 (Registration No. 333-264184) filed on April 7, 2022 and the 30,840 shares of Common Stock (after giving effect to the Reverse Split) registered for issuance under the 2021 Plan pursuant to the currently effective Registration Statement on Form S-8 (Registration No. 333-269557) filed on February 3, 2023 (collectively, the “Prior Registration Statements”). The information contained in the Prior Registration Statements is hereby incorporated by reference pursuant to General Instruction E. Any items in any of the Prior Registration Statements not expressly changed hereby shall be as set forth in the Prior Registration Statements.

 

All share amounts referenced above and otherwise in this Registration Statement give effect to a 1-for-35 reverse stock split of the Common Stock effected on September 21, 2023 (the “Reverse Split”).

 

 

PART II

 

Information Required in the Registration Statement

 

Item 3.

Incorporation of Documents by Reference.

 

The following documents filed by the Company with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

(a)	The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the Commission on March 27, 2024;
(b)	The Company’s Current Reports on Form 8-K filed with the Commission on January 29, 2024 and February 28, 2024 (other than any portions thereof deemed furnished and not filed); and
(d)	The description of the Company’s Common Stock contained in Company’s Current Report on Form 8-K filed with the Commission on February 24, 2021, as updated by the Description of Securities set forth on Exhibit 4.4 to our Annual Report on Form 10-K filed with the Commission on March 27, 2024, including any amendments or reports filed for the purpose of updating such description.

 

All documents filed by the Company pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes such statement.

 

Item 8.

Exhibits.

 

For a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item by reference. 

 

 

EXHIBIT INDEX

 

Exhibit Number		Description of Exhibit
5.1		Opinion of Lowenstein Sandler LLP*
23.1		Consent of BDO LLP, independent registered public accounting firm*
23.2		Consent of Marcum LLP, independent registered public accounting firm*
23.3		Consent of Lowenstein Sandler LLP (filed as part of Exhibit 5.1)*
24.1		Power of Attorney (included on the signature page to this registration statement on Form S-8)*
99.1		2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on February 24, 2021)
99.2		U.K. Tax Advantaged Sub-Plan (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on February 24, 2021)
99.3		Amendment to 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 28, 2023)
107		Filing Fee Table*

 

* Filed herewith.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 in the City of Manchester, Great Britain, the United Kingdom on April 11, 2024.

  

SmartKem, Inc.
By:	/s/ Ian Jenks
	Ian Jenks
	Chief Executive Officer

  

POWER OF ATTORNEY AND SIGNATURES

 

KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of SmartKem, Inc., a Delaware corporation, do hereby constitute and appoint each of Ian Jenks and Barbra C. Keck as his true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments to this Registration Statement on Form S-8), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange 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 in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the registrant in the capacities and on the dates indicated.

 

Person		Capacity		Date
/s/ Ian Jenks		Chief Executive Officer and Director
Ian Jenks		(Principal Executive Officer)		April 11, 2024
/s/ Barbra C. Keck		Chief Financial Officer
Barbra C. Keck		(Principal Financial and Accounting Officer)		April 11, 2024
/s/ Klaas de Boer
Klaas de Boer		Director		April 11, 2024
/s/ Steven DenBaars
Steven DenBaars		Director		April 11, 2024
/s/ Sri Peruvemba
Sri Peruvemba		Director		April 11, 2024
/s/ Melisa Denis
Melisa Denis		Director		April 11, 2024

 

 

Exhibit 5.1

 

 

 

April 11, 2024

 

SmartKem, Inc.

Manchester Technology Center, Hexagon Tower

Delaunays Road, Blackley

Manchester, M9 8GQ U.K.

 

Re: Form S-8 Registration Statement of SmartKem Inc.

 

We have acted as counsel for SmartKem, Inc., a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration of an aggregate of 653,647 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share, issuable pursuant to awards under: (i) the SmartKem, Inc. 2021 Equity Incentive Plan and (ii) the 2021 United Kingdom Sub-Plan to the SmartKem, Inc. 2021 Equity Incentive Plan (collectively, the “Plans”).

 

In connection with rendering this opinion, we have examined: (i) the Plans; (ii) the Certificate of Incorporation of the Company; (iii) the Bylaws of the Company; and (iv) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.

 

In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity of original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company.

 

Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that the Shares being registered pursuant to the Registration Statement have been duly authorized and, when issued and delivered upon the grant or exercise of awards in accordance with the terms of the respective Plans, will be validly issued, fully paid and non-assessable.

 

The opinion expressed herein is limited to the corporate laws of the State of Delaware, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.

 

We hereby consent to the filing of a copy of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

Very truly yours,

 

/s/ Lowenstein Sandler LLP

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

 

SmartKem, Inc.

Manchester, United Kingdom

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 30, 2023, except for the effects of the reverse stock split as described in Notes 2 and 8, which is dated March 27, 2024, relating to the consolidated financial statements of SmartKem, Inc., which appears in the Company’s Annual Report on Form 10-K, which is incorporated by reference in this Registration Statement. Our report contains an explanatory paragraph regarding SmartKem, Inc.’s ability to continue as a going concern.

 

/s/ BDO LLP

 

BDO LLP

Manchester, United Kingdom

April 11, 2024

 

 

Exhibit 23.2

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of SmartKem, Inc. on Form S-8 of our report dated March 27, 2024, with respect to our audit of the consolidated financial statements of SmartKem, Inc. and Subsidiaries as of December 31, 2023 and for the year ended December 31, 2023, appearing in the Annual Report on Form 10-K of SmartKem, Inc. for the year ended December 31, 2023.

 

/s/ Marcum llp

 

Marcum llp

New York, NY

April 11, 2024

 

 

Exhibit 107

 

Calculation of Filing Fee Table

 

Form S-8

(Form Type)

 

SmartKem, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type	Security Class Title	Fee Calculation Rule (2)	Amount Registered (1)	Proposed Maximum Offering Price Per Unit (2)	Maximum Aggregate Offering Price (2)	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.0001 par value per share	Other	653,647	$11.25	$7,353,528.75	0.00014760	$1,085.38
Total Offering Amounts				------	$7,353,528.75	------	$1,085.38
Total Fee Offsets				------	------	------	------
Net Fees Due				------	------	------	$1,085.38

 

(1)	Covers 653,647 shares of common stock issuable under the SmartKem, Inc. 2021 Equity Incentive Plan and the 2021 United Kingdom Sub-Plan to the SmartKem, Inc. 2021 Equity Incentive Plan (the “2021 Plan”). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein, as these amounts may be adjusted as a result of stock splits, stock dividends, antidilution provisions, and similar transactions.
(2)	Calculated solely for purposes of this offering under Rules 457(c) and 457(h) of the Securities Act on the basis of the average of the bid and ask prices of Registrant’s Common Stock on the OTCQB of the OTC Markets on April 4, 2024.

 

 

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