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 |
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85-1083654 |
(State or other jurisdiction of
incorporation or organization) |
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(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 |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
x |
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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; |
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(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 |
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(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.
For a list of exhibits, see the Exhibit Index
in this Registration Statement, which is incorporated into this Item by reference.
EXHIBIT INDEX
* 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. |
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By: |
/s/ Ian Jenks |
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Ian Jenks |
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Chief Executive Officer |
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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 |
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Capacity |
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Date |
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/s/ Ian Jenks |
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Chief Executive Officer and Director |
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Ian Jenks |
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(Principal Executive Officer) |
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April 11, 2024 |
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/s/ Barbra C. Keck |
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Chief Financial Officer |
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Barbra C. Keck |
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(Principal Financial and Accounting Officer) |
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April 11, 2024 |
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/s/ Klaas de Boer |
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Klaas de Boer |
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Director |
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April 11, 2024 |
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/s/ Steven DenBaars |
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Steven DenBaars |
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Director |
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April 11, 2024 |
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/s/ Sri Peruvemba |
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Sri Peruvemba |
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Director |
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April 11, 2024 |
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/s/ Melisa Denis |
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Melisa Denis |
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Director |
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April 11, 2024 |
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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 |
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$1,085.38 |
Total Fee Offsets |
------ |
------ |
------ |
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Net Fees Due |
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------ |
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$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. |
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(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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