As filed with the Securities and Exchange Commission
on June 21, 2024
Registration No. 333-264182
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 4
TO
FORM S-1
ON
FORM S-3
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 Number) |
Manchester Technology Center, Hexagon Tower
Delaunays Road, Blackley
Manchester, M9 8GQ U.K.
011-44-161-721-1514
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Barbra C. Keck
Chief Financial 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)
Copy to:
John D. Hogoboom, Esq.
Tracy F. Buffer, Esq.
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
(646) 414-6846
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. x
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: |
|
x |
|
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 Securities Act. ☐
Pursuant to Rule 429(a) under the Securities
Act of 1933, as amended, the prospectus contained in this Post-Effective Amendment No. 4 (this “Post-Effective Amendment”)
to the Registration Statement on Form S-1 of the Registrant originally declared effective on April 15, 2022 (File No. 333-264182)
is a combined prospectus including securities remaining unsold under such Registration Statement and under the Registration Statement
on Form S-1 of the Registrant originally declared effective on March 24, 2021 (File No. 333-254222).
Pursuant to Rule 429(b), upon effectiveness,
this Post-Effective Amendment will constitute Post-Effective Amendment No. 5 to Registration Statement No. 333-254222.
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 or until the Registration Statement shall become effective on such date as the Commission acting pursuant to said
Section 8(a), may determine.
EXPLANATORY NOTE
On March 12, 2021, we filed a registration
statement with the Securities and Exchange Commission (the “SEC”) on Form S-1 (File No. 333- 254222) (the “2021
Registration Statement”). The Registration Statement was initially declared effective by the SEC on March 24, 2021 and initially
registered the offer and sale from time to time by the selling stockholders of up to 816,825 shares of our common stock, $0.0001 par value
per share.
On April 7, 2022, we filed a registration
statement with the SEC Form S-1 (File No. 333-264182) (the “2022 Registration Statement” and collectively with the
2021 Registration Statement, the “Registration Statements”). The 2022 Registration Statement was initially declared effective
by the SEC on April 15, 2022 and initially registered the offer and sale from time to time by the selling stockholders of up to 28,572
shares of our common stock, $0.0001 par value per share.
A post-effective amendment No. 2 was filed
with the SEC on Form S-1 (File No. 333-264182) on April 6, 2023 pursuant to Rule 429 under the Securities Act of 1933,
as amended (the “Securities Act”), to combine the prospectuses included in the Registration Statements.
We are filing this Post-Effective Amendment No. 4
to the Registration Statement (this “Amendment”) to (i) convert the Registration Statement into a registration statement
on Form S-3 because we are eligible to use Form S-3 for the transaction covered hereby and (ii) update certain information
regarding our company and the securities being offered pursuant to the prospectus contained herein.
Updating for sales and transfers, this Amendment
covers a total of 792,239 shares of common stock originally included in the 2021 Registration Statement and 2022 Registration Statement.
All applicable filing fees were paid at the time
of filing of the Registration Statements. No additional securities are being registered under this Amendment.
The information in this prospectus
is not complete and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange
Commission. These securities may not be sold until the registration statement is effective. This prospectus is not an offer to sell these
securities and does not solicit an offer to buy these securities in any state or other jurisdiction where the offer or sale is not permitted.
Subject to completion, dated June 21,
2024
PRELIMINARY PROSPECTUS
SMARTKEM, INC.
792,239 Shares of Common Stock
This prospectus relates to the sale or other disposition
by the selling stockholders identified herein of up to 792,239 shares of common stock, par value $0.0001 per share, of SmartKem, Inc.,
consisting of (i) shares of common stock issued in connection with an exchange transaction
pursuant to which we acquired the outstanding equity interests of SmartKem Limited (“Old SmartKem”), a private company incorporated
under the Laws of England and Wales (the “Exchange”), (ii) shares of common stock held by the pre-Exchange stockholders
of Parasol Investments Corporation, our predecessor, (iii) shares of common stock privately issued to an advisor in connection with
the Exchange, (iv) shares of common stock issued to certain of the selling stockholders in a private placement that closed on February 23,
2021 (the “Offering”), (v) shares of our common stock issuable upon the exercise of pre-funded warrants issued to certain
of the selling stockholders in lieu of shares of common stock in the Offering, (vi) shares of common stock issuable upon the exercise
of warrants (the “Placement Agent Warrants”) issued to representatives of the placement agent in connection with the Offering
and (vii) shares of common stock issued to certain of the selling stockholders in a private placement that closed on January 27,
2022 (the “Octopus Share Purchase”).
We will not receive any proceeds from the sale
or other disposition of the shares of our common stock by the selling stockholders. We will, however, receive the proceeds from any cash
exercise of the pre-funded warrants and Placement Agent Warrants. The selling stockholders may sell or otherwise dispose of the shares
of our common stock offered by this prospectus from time to time through the means described in this prospectus under the caption “Plan
of Distribution.” For a list of the selling stockholders, see the section entitled “Selling Stockholders” on page 9 of this prospectus. We have borne and will continue to bear the costs relating to the registration of these shares.
Our common stock is listed on the Nasdaq Capital
Market under the symbol “SMTK.” The last reported sale price for our common stock on the Nasdaq Capital Market on June 18,
2024 was $6.00 per share.
You should read this prospectus and any supplement,
together with additional information described under the headings “Additional Information” and “Incorporation of Certain
Information by Reference” carefully before you invest.
We are an “emerging growth company”
and a “smaller reporting company” as defined under the federal securities laws and, as such, are eligible for reduced public
company reporting requirements. See “Prospectus Summary – Implications of Being an Emerging Growth Company and a Smaller Reporting
Company.”
Investing in our common stock involves a high
degree of risk. Before making an investment decision. See “Risk Factors” in our most recent Annual Report on Form 10-K
as such risk factors may be updated in our subsequent reports filed with the Securities and Exchange Commission, which are incorporated
by reference herein, and as may be amended, supplemented or superseded from time to time by other reports we file with the Securities
and Exchange Commission.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 we filed with the SEC using the “shelf” registration process. Under this shelf registration process, the
selling stockholders may, from time to time, sell or otherwise dispose of the shares of common stock offered by them described in this
prospectus. We will not receive any proceeds from the sale or other disposition of the shares of common stock offered by the selling stockholders
described in this prospectus. We will, however, receive the proceeds from any cash exercise of the pre-funded warrants and the Placement
Agent Warrants.
Neither we nor the selling stockholders have authorized
anyone to provide you with any information or to make any representations other than those contained in this prospectus or any applicable
prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. Neither we nor
the selling stockholders take responsibility for and can provide no assurance as to the reliability of, any other information that others
may give you. Neither we nor the selling stockholders will make an offer to sell these securities in any jurisdiction where the offer
or sale is not permitted.
For investors outside the United States: neither
we nor the selling stockholders have done anything that would permit this offering or possession or distribution of this prospectus in
any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come
into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of our securities
covered hereby and the distribution of this prospectus outside the United States.
This prospectus contains summaries of certain provisions
contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the
summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed,
will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under “Additional Information” and “Incorporation of Certain
Information by Reference.”
We may also provide a prospectus supplement or
post-effective amendment to the registration statement to add information to, or update or change information contained in, this prospectus.
You should read both this prospectus and any applicable prospectus supplement or post-effective amendment to the registration statement
together with the additional information to which we refer you in the sections of this prospectus entitled “Additional Information” and
“Incorporation of Certain Information by Reference.”
Unless otherwise stated or the context otherwise
indicates, references to “SmartKem,” the “Company,” “we,” “our,” “us,” or
similar terms refer to SmartKem, Inc. and its subsidiaries.
PROSPECTUS SUMMARY
The following summary highlights
some information from this prospectus. It is not complete and does not contain all of the information that you should consider before
making an investment decision. You should read this entire prospectus, including the “Risk Factors” section on page 5 and the disclosures to which that section refers you, the financial statements and related notes and the other more detailed information
appearing elsewhere or incorporated by reference into this prospectus before investing in any of the securities described in this prospectus.
Overview
We are seeking to reshape
the world of electronics with our disruptive organic thin-film transistors (“OTFTs”) that we believe have the potential to
drive the next generation of displays. Our patented TRUFLEX® semiconductor and dielectric inks, or electronic polymers, are used to
make a new type of transistor that we believe have the capability to revolutionize the display industry. Our inks enable low temperature
printing processes that are compatible with existing manufacturing infrastructure to deliver low-cost displays that outperform existing
technologies. Our electronic polymer platform can be used in a range of display technologies including microLED, miniLED and AMOLED displays
for next generation televisions, laptops, augmented reality (“AR”) and virtual reality (“VR”) headsets, smartwatches
and smartphones.
Implications of Being
an Emerging Growth Company and a Smaller Reporting Company
As a company with less
than $1.235 billion in revenue during our last fiscal year, we qualify as an “emerging growth company” as defined in
the Jumpstart Our Business Startups Act of 2012, or JOBS Act, and as a “smaller reporting company” under applicable SEC regulations.
An emerging growth company and a smaller reporting company may take advantage of reduced reporting requirements that are otherwise applicable
to public companies. These provisions include, but are not limited to:
| ● | being permitted to present only two years of audited financial statements and only two years of related “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” disclosure in our periodic reports and registration statements,
including this prospectus; reduced disclosure about our executive compensation arrangements; |
| ● | not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, as amended,
on the effectiveness of our internal controls over financial reporting; |
| ● | reduced disclosure obligations regarding executive compensation arrangements in our periodic reports, proxy statements and registration
statements, including this prospectus; and |
| ● | exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden
parachute payments not previously approved. |
We will cease to be an
emerging growth company on the last day of our fiscal year in which the fifth anniversary of the first sale of our common stock pursuant
to our initial registration statement occurs. However, if certain events occur prior to the end of such five-year period, including if
we become a “large accelerated filer,” our annual gross revenues exceed $1.235 billion or we issue more than $1.0 billion
of non- convertible debt in any three-year period, we will cease to be an emerging growth company prior to the end of such five-year period.
We will continue to be a smaller reporting company as long as we have a public float (determined as of the end of our second fiscal quarter)
of less than $250 million or have annual revenues of less than $100 million as of the last fiscal year for which we have audited
financial statements and a public float of less than $700 million.
We have elected to take
advantage of certain of the reduced disclosure obligations in the registration statement of which this prospectus is a part and may elect
to take advantage of other reduced reporting requirements in future filings. As a result, the information that we provide to our stockholders
may be different than you might receive from other public reporting companies in which you hold equity interests.
The JOBS Act provides
that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards,
until those standards apply to private companies. We have elected to take advantage of the benefits of this extended transition period
and, therefore, we will not be subject to the same new or revised accounting standards as other public companies that are not emerging
growth companies. Our financial statements may therefore not be comparable to those of companies that comply with such new or revised
accounting standards. Until the date that we are no longer an emerging growth company or affirmatively and irrevocably opt out of the
exemption provided by Section 7(a)(2)(B) of the Securities Act of 1933, as amended (the “Securities Act”), upon
issuance of a new or revised accounting standard that applies to our financial statements and that has a different effective date for
public and private companies, we will disclose the date on which we will adopt the recently issued accounting standard.
If we are a smaller reporting
company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements
that are available to smaller reporting companies. Specifically, as a smaller reporting company we may choose to present only the two
most recent fiscal years of audited financial statements in our Annual Report on Form 10-K and, similar to emerging growth companies,
smaller reporting companies have reduced disclosure obligations regarding executive compensation.
Corporate Information
We were incorporated as
Parasol Investments Corporation in the State of Delaware on May 13, 2020. SmartKem Limited was incorporated under the laws of England
and Wales on July 21, 2008. On February 23, 2021, we completed an exchange with SmartKem Limited and the former shareholders
of SmartKem Limited (the “Exchange”) pursuant to which substantially all of the equity interests in SmartKem Limited were
exchanged for shares of our common stock, and SmartKem Limited became our wholly owned subsidiary. Immediately following the Exchange,
the business of SmartKem Limited became our business and we changed our name to “SmartKem, Inc.” Prior to the Exchange,
Parasol Investments Corporation was a “shell” company registered under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), with no specific business plan or purpose until it began operating the business of SmartKem Limited following
the closing of the Exchange.
Our principal executive
offices are located at Manchester Technology Center, Hexagon Tower, Delaunays Road, Blackley Manchester, M9 8GQ U.K. Our telephone number
is 011-44-161-721-1514. Our website address is www.smartkem.com. Information contained on, or that can be accessed through, our website
is not a part of this prospectus.
All trademarks, service
marks and trade names appearing in this prospectus are the property of their respective holders. Use or display by us of other parties’
trademarks, trade dress, or products in this prospectus is not intended to, and does not, imply a relationship with, or endorsements or
sponsorship of, us by the trademark or trade dress owners.
THE OFFERING
The following summary of the offering contains
basic information about the offering and our securities and is not intended to be complete. It does not contain all the information that
may be important to you. For a more complete understanding of our securities, please refer to the section titled “Description
of Securities.”
| Common stock offered by the selling stockholders |
|
792,239 shares |
| |
|
|
| Common stock outstanding as of June 10, 2024 |
|
1,713,900 shares |
| |
|
|
| Use of proceeds |
|
We will not receive any proceeds from the sale or other disposition of the shares of our common stock covered hereby by the selling stockholders. We will, however, receive the proceeds from any cash exercise of the pre-funded warrants and Placement Agent Warrants. |
| |
|
|
| Offering price |
|
The selling stockholders may sell or otherwise dispose of all or a portion of the shares of our common stock covered hereby through public or private transactions at prevailing market prices or at privately negotiated prices. |
| |
|
|
| Risk factors |
|
See “Risk Factors” in our most recent Annual Report on Form 10-K and in our subsequent reports filed with the SEC, which are incorporated by reference herein, and other information in this prospectus for a discussion of the factors you should consider before you decide to invest in our securities. |
| |
|
|
| Market for our shares |
|
Our common stock is listed on the Nasdaq Capital Market under the symbol “SMTK.” The last
reported sale price for our common stock on the Nasdaq Capital Market on June 18, 2024 was $6.00 per share. |
RISK FACTORS
Investing in our securities involves a high degree
of risk. Before purchasing any of the securities you should carefully consider the risk factors incorporated by reference in this prospectus
from our most recent Annual Report on Form 10-K and any subsequent updates described in our Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K. For a description of these reports and information about where you can find them, see “Additional
Information” and “Incorporation of Certain Information By Reference.” Additional risks not presently known or that we
presently consider to be immaterial could subsequently materially and adversely affect our financial condition, results of operations,
business and prospects.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference in this prospectus contain, and our officers and representatives may from time to time make, forward-looking statements that
involve substantial risks and uncertainties. In some cases, you can identify forward-looking statements by terms such as “may,”
“will,” “should,” “expect,” “plan,” “anticipate,” “could,” “intend,”
“target,” “project,” “estimate,” “believe,” “estimate,” “predict,”
“potential” or “continue” or the negative of these terms or other similar expressions intended to identify statements
about the future. These statements speak only as of the date of this prospectus and involve known and unknown risks, uncertainties and
other important factors that may cause our actual results, performance or achievements to be materially different from any future results,
performance or achievements expressed or implied by the forward-looking statements. We have based these forward-looking statements largely
on our current expectations and projections about future events and financial trends that we believe may affect our business, financial
condition and results of operations. These forward-looking statements include, without limitation, statements about the following:
| ● | the implementation of our business model and strategic plans for our business, technologies and products; |
| ● | the rate and degree of market acceptance of any of our products or organic semiconductor technology in |
| ● | general, including changes due to the impact of (i) new semiconductor technologies, (ii) the performance of organic semiconductor
technology, whether perceived or actual, relative to competing semiconductor materials, and (iii) the performance of our products,
whether perceived or actual, compared to competing silicon-based and other products; |
| ● | the timing and success of our, and our customers’, product releases; |
| ● | our ability to develop new products and technologies; |
| ● | our estimates of our expenses, ongoing losses, future revenue and capital requirements, including our needs for additional financing; |
| ● | our ability to obtain additional funds for our operations and our intended use of any such funds; |
| ● | our ability to remain eligible on an over-the-counter quotation system; |
| ● | our receipt and timing of any royalties, milestone payments or payments for products, under any current or future collaboration, license
or other agreements or arrangements; |
| ● | our ability to obtain and maintain intellectual property protection for our technologies and products and our ability to operate our
business without infringing the intellectual property rights of others; |
| ● | the strength and marketability of our intellectual property portfolio; |
| ● | our dependence on current and future collaborators for developing, manufacturing or otherwise bringing our products to market; |
| ● | the ability of our third-party supply and manufacturing partners to meet our current and future business needs; |
| ● | our exposure to risks related to international operations; |
| ● | our dependence on third-party fabrication facilities; |
| ● | the impact of the COVID-19 pandemic and any future communicable disease outbreak on our business and operations; |
| ● | our relationships with our executive officers, directors, and significant stockholders; |
| ● | our expectations regarding our classification as a “smaller reporting company,” as defined under Exchange Act,”
and an “emerging growth company” under the JOBS Act in future periods; |
| ● | our future financial performance; |
| ● | the competitive landscape of our industry; and |
| ● | the impact of government regulation and developments relating to us, our competitors, or our industry. |
The foregoing does not represent an exhaustive
list of matters that may be covered by the forward-looking statements contained herein and in the documents incorporated by reference
herein or risk factors that we are faced with that may cause our actual results to differ from those anticipate in our forward-looking
statements. Factors that may affect our results include, but are not limited to, the risks and uncertainties discussed in the “Risk
Factors” section on page 5 of this prospectus, in our Annual Report on Form 10-K or in other reports we file with the
SEC.
Moreover, new risks regularly emerge, and it is
not possible for our management to predict or articulate all risks we face, nor can we assess the impact of all risks on our business
or the extent to which any risk, or combination of risks, may cause actual results to differ from those contained in any forward-looking
statements. The Private Securities Litigation Reform Act of 1995 and Section 27A of the Securities Act, do not protect any forward-looking
statements that we make in connection with this offering. All forward-looking statements included in this prospectus and in the documents
incorporated by reference in this prospectus are based on information available to us on the date of this prospectus or the date of the
applicable document incorporated by reference. Except to the extent required by applicable laws or rules, we undertake no obligation to
publicly update or revise any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result
of new information, future events or otherwise. All subsequent written and oral forward-looking statements attributable to us or persons
acting on our behalf are expressly qualified in their entirety by the cautionary statements contained above and throughout this prospectus
and in the documents incorporated by reference in this prospectus. We qualify all of our forward-looking statements by these cautionary
statements.
USE OF PROCEEDS
All of the shares of common stock offered by the
selling stockholders pursuant to this prospectus will be sold or disposed of by the selling stockholders for their respective accounts.
We will not receive any proceeds from the sale or other disposition of the shares of common stock covered hereby. We will, however, receive
the proceeds from any cash exercise of the pre-funded warrants and Placement Agent Warrants.
SELLING STOCKHOLDERS
This prospectus covers the sale or other disposition
by the selling stockholders identified below of up to 792,239 shares of our common stock. The selling
stockholders were pre-Exchange stockholders of our predecessor, Parasol Investments Corporation, or acquired our securities in connection
with the Exchange, the Offering or the Octopus Share Purchase. The registration of the common stock of the selling stockholders through
this prospectus constitutes a secondary offering and is not an offering by us or on our behalf. We will not receive any proceeds from
the resale of the common stock by the selling stockholders. We will, however, receive the proceeds from any cash exercise of the
pre-funded warrants and Placement Agent Warrants.
Except as disclosed in the footnotes below, none
of the selling stockholders has been an officer or director of ours or any of our predecessors or affiliates within the last three years.
Except as disclosed in the footnotes below, no selling stockholder had a material relationship with us or any of our affiliates within
the last three years.
The following table and the accompanying footnotes
are based in part on information supplied to us by the selling stockholders. The table and footnotes assume that the selling stockholders
will sell all of the shares registered hereby. However, because the selling stockholders may sell all or some of their shares under this
prospectus from time to time, or in another permitted manner, we cannot assure you as to the actual number of shares that will be sold
by the selling stockholders in this offering or that will be held by the selling stockholders after completion of this offering. We do
not know how long the selling stockholders will hold the shares before selling them. The inclusion of any shares in this table does not
constitute an admission of beneficial ownership by the persons named below. See “Plan of Distribution.”
Certain selling stockholders own warrants and
convertible preferred stock that contain blockers preventing the exercise or conversion thereof, as applicable, if as a result of such
exercise or conversion, the holder would beneficially own more than 4.99% or 9.99%, as applicable, of our common stock. The number of
shares listed in the first and third columns of the table below assume the exercise in full of the warrants and the conversion in full
of the convertible preferred stock held by each selling stockholder without giving effect to such blockers, but the percentages set forth
in the fourth column give effect to such blockers.
| |
|
|
|
|
|
|
|
Percentage of |
|
| |
|
Shares |
|
Shares |
|
Shares |
|
Shares |
|
| |
|
Beneficially |
|
Offered |
|
Beneficially |
|
Beneficially |
|
| |
|
Owned prior |
|
by this |
|
Owned after |
|
Owned after |
|
| Name of Selling Stockholder |
|
to Offering |
|
Prospectus |
|
Offering |
|
Offering (%) (1) |
|
| Octopus Titan VCT Plc (2) |
|
211,895 |
|
211,895 |
|
— |
|
— |
|
| Octopus Investments Nominees Limited (2) |
|
1,707 |
|
1,707 |
|
— |
|
— |
|
| Entrepreneurs Fund LP (3) |
|
102,436 |
|
102,436 |
|
— |
|
— |
|
| AIGH Investment Partners, LP (4) |
|
1,258,461 |
|
86,789 |
(5) |
1,171,672 |
(6) |
9.99 |
|
| WVP Emerging Manager Onshore Fund, LLC – Optimized Equity Series (4) |
|
91,149 |
|
6,538 |
|
84,611 |
(7) |
9.99 |
|
| WVP Emerging Manager Onshore Fund, LLC – AIGH Series (4) |
|
311,306 |
|
20,064 |
|
291,242 |
(8) |
9.99 |
|
| AIGH Investment Partners, LLC (4) |
|
224,873 |
|
18,929 |
(9) |
205,944 |
(10) |
9.99 |
|
| HLH Holdings LLC (11) |
|
6,083 |
|
715 |
(12) |
5,368 |
(13) |
* |
|
| Mark Tompkins |
|
65,715 |
|
65,715 |
|
— |
|
— |
|
| The Hewlett Fund LP(14) |
|
798,002 |
|
35,715 |
|
762,287 |
(15) |
9.99 |
|
| Seventh Avenue Investments LLC |
|
5,237 |
|
5,237 |
|
— |
|
— |
|
| Ian Jenks(16) |
|
28,622 |
|
10,411 |
|
18,211 |
(17) |
* |
|
| BASF Venture Capital GmbH(18) |
|
17,974 |
|
17,974 |
|
— |
|
— |
|
| The Peierls Foundation, Inc. (19) |
|
14,200 |
|
14,200 |
|
— |
|
— |
|
| Eric Rubenstein |
|
11,983 |
|
11,983 |
|
— |
|
— |
|
| David Landskowsky |
|
11,983 |
|
11,983 |
(20) |
— |
|
— |
|
| Globis Capital (21) |
|
10,715 |
|
10,715 |
(22) |
— |
|
— |
|
| ACNYC, LLC (23) |
|
7,143 |
|
7,143 |
|
— |
|
— |
|
| R. Douglas Rivers |
|
7,143 |
|
7,143 |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
Percentage of |
|
| |
|
Shares |
|
Shares |
|
Shares |
|
Shares |
|
| |
|
Beneficially |
|
Offered |
|
Beneficially |
|
Beneficially |
|
| |
|
Owned prior |
|
by this |
|
Owned after |
|
Owned after |
|
| Name of Selling Stockholder |
|
to Offering |
|
Prospectus |
|
Offering |
|
Offering (%) (1) |
|
| Charles Alpert |
|
60,859 |
|
7,143 |
|
53,716 |
(24) |
3.1 |
|
| Yaacov Bodner |
|
60,844 |
|
7,128 |
|
53,716 |
(25) |
3.1 |
|
| Anne Berrien Wyman de Boer(26) |
|
17,764 |
|
5,715 |
|
12,049 |
(27) |
* |
|
| Ian Jacobs |
|
5,715 |
|
5,715 |
|
— |
|
— |
|
| Simon Ogier (28) |
|
10,773 |
|
5,660 |
|
5,113 |
(29) |
* |
|
| Steven Kelly |
|
4,975 |
|
4,975 |
|
— |
|
— |
|
| Maurice Iudicone |
|
3,572 |
|
3,572 |
|
— |
|
— |
|
| Swadesh Fam Trust (30) |
|
3,572 |
|
3,572 |
|
— |
|
— |
|
| Fame Associates (31) |
|
30,430 |
|
3,572 |
|
26,858 |
(32) |
1.6 |
|
| AME Capital Group, LLC (33) |
|
30,429 |
|
3,571 |
|
26,858 |
(34) |
1.6 |
|
| Mel Mac Alt LLC (35) |
|
30,429 |
|
3,571 |
|
26,858 |
(36) |
1.6 |
|
| Robert Bahns (37) |
|
3,396 |
|
3,396 |
|
— |
|
— |
|
| Jogchum Brinksma |
|
2,915 |
|
2,915 |
|
— |
|
— |
|
| DBW Investments (6) Limited (38) |
|
2,885 |
|
2,885 |
|
— |
|
— |
|
| E. Jeffrey Peierls |
|
2,286 |
|
2,286 |
|
— |
|
— |
|
| Mazel D&K(39) |
|
19,545 |
|
2,143 |
|
17,402 |
(40) |
1.0 |
|
| Clay Lebhar |
|
2,143 |
|
2,143 |
|
— |
|
— |
|
| Chesed Avraham |
|
19,688 |
|
2,143 |
|
17,545 |
(41) |
1.0 |
|
| Mustafa Ozgen |
|
2,115 |
|
2,115 |
|
— |
|
— |
|
| Albert Pezone |
|
1,972 |
|
1,972 |
(42) |
— |
|
— |
|
| Brian Eliot Peierls |
|
1,857 |
|
1,857 |
|
— |
|
— |
|
| Rajan Dosanjh |
|
1,429 |
|
1,429 |
|
— |
|
— |
|
| Mark Breen Rev Trust (43) |
|
1,429 |
|
1,429 |
|
— |
|
— |
|
| Adolfo and Donna Carmona |
|
1,429 |
|
1,429 |
|
— |
|
— |
|
| Coover Living Rev Trust (44) |
|
1,429 |
|
1,429 |
|
— |
|
— |
|
| Five Plus Investments LLC(45) |
|
12,173 |
|
1,429 |
|
10,744 |
(46) |
* |
|
| Andrew & Melissa Fisher |
|
1,429 |
|
1,429 |
|
— |
|
— |
|
| Matthew Headington |
|
1,429 |
|
1,429 |
|
— |
|
— |
|
| Joseph L. & Frances L. Simek Family Investments, Ltd. (47) |
|
1,429 |
|
1,429 |
|
— |
|
— |
|
| Todd Harrigan |
|
1,326 |
|
1,326 |
|
— |
|
— |
|
| Henry Dixon |
|
1,301 |
|
1,301 |
|
— |
|
— |
|
| Alastair John Baker |
|
1,186 |
|
1,186 |
|
— |
|
— |
|
| Richard Ian Smith |
|
1,153 |
|
1,153 |
|
— |
|
— |
|
| UD J.N. Peierls for Brian Eliot Peierls (48) |
|
1,143 |
|
1,143 |
|
— |
|
— |
|
| UD J.N. Peierls for E. Jeffrey Peierls (48) |
|
1,143 |
|
1,143 |
|
— |
|
— |
|
| UW J.N. Peierls for Brian E. Peierls (48) |
|
1,143 |
|
1,143 |
|
— |
|
— |
|
| UW J.N. Peierls for E. Jeffrey Peierls (48) |
|
1,143 |
|
1,143 |
|
— |
|
— |
|
| UD Ethel F. Peierls Charitable Lead Trust (48) |
|
1,143 |
|
1,143 |
|
— |
|
— |
|
| Eliezer Lubitch |
|
1,072 |
|
1,072 |
|
— |
|
— |
|
| Jeffrey McMahon |
|
1,072 |
|
1,072 |
|
— |
|
— |
|
| Daniel Michael |
|
1,072 |
|
1,072 |
|
— |
|
— |
|
| John V. Wagner Jr |
|
7,145 |
|
1,072 |
|
6,073 |
(49) |
* |
|
| Hershel Berkowitz |
|
9,130 |
|
1,072 |
|
8,058 |
(50) |
* |
|
| MPS Equity Group LLC (51) |
|
8,826 |
|
1,036 |
|
7,790 |
(52) |
* |
|
| UD E.F. Peierls for Brian E. Peierls (48) |
|
1,015 |
|
1,015 |
|
— |
|
— |
|
| UD E.F. Peierls for E. Jeffrey Peierls (48) |
|
1,015 |
|
1,015 |
|
— |
|
— |
|
| UW E.S. Peierls for Brian E. Peierls – Accumulation (48) |
|
915 |
|
915 |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
Percentage of |
|
| |
|
Shares |
|
Shares |
|
Shares |
|
Shares |
|
| |
|
Beneficially |
|
Offered |
|
Beneficially |
|
Beneficially |
|
| |
|
Owned prior |
|
by this |
|
Owned after |
|
Owned after |
|
| Name of Selling Stockholder |
|
to Offering |
|
Prospectus |
|
Offering |
|
Offering (%) (1) |
|
| DBW Investments (5) Limited (53) |
|
758 |
|
758 |
|
— |
|
— |
|
| Graham Ballantyne |
|
755 |
|
755 |
|
— |
|
— |
|
| Rueon Boorman |
|
755 |
|
755 |
|
— |
|
— |
|
| Alejandro Carreras |
|
755 |
|
755 |
|
— |
|
— |
|
| John Morgan |
|
855 |
|
755 |
|
100 |
|
— |
|
| Daniel Sharkey |
|
755 |
|
755 |
|
— |
|
— |
|
| Colin Watson |
|
755 |
|
755 |
|
— |
|
— |
|
| Stephen Whitelegg |
|
755 |
|
755 |
|
— |
|
— |
|
| Northlea Partners LLLP (54) |
|
715 |
|
715 |
|
— |
|
— |
|
| Jeffery Atkin |
|
715 |
|
715 |
|
— |
|
— |
|
| DeLoach LS Investments LLC (55) |
|
715 |
|
715 |
|
— |
|
— |
|
| Steven DenBaars (56) |
|
1,083 |
|
715 |
|
368 |
(57) |
* |
|
| James Dritz |
|
715 |
|
715 |
|
— |
|
— |
|
| Kirby Frank |
|
6,087 |
|
715 |
|
5,372 |
(58) |
* |
|
| David Ishag |
|
715 |
|
715 |
|
— |
|
— |
|
| Richard & Mary Leslie Kingston |
|
715 |
|
715 |
|
— |
|
— |
|
| Stephen Mut |
|
715 |
|
715 |
|
— |
|
— |
|
| John Pescitelli |
|
715 |
|
715 |
|
— |
|
— |
|
| Jeffrey Shealy |
|
715 |
|
715 |
|
— |
|
— |
|
| David & Sharon Weiss |
|
715 |
|
715 |
|
— |
|
— |
|
| MITZ ZHU YAN, LP (59) |
|
715 |
|
715 |
|
— |
|
— |
|
| Gubbay Investments LLC (60) |
|
643 |
|
643 |
|
— |
|
— |
|
| B Brown Consultants Ltd (61) |
|
10,874 |
|
572 |
|
10,302 |
(62) |
* |
|
| Andrew Horan |
|
572 |
|
572 |
|
— |
|
— |
|
| UD E.S. Peierls for E.F. Peierls et al (48) |
|
572 |
|
572 |
|
— |
|
— |
|
| UW E.S. Peierls for E. Jeffrey Peierls − Accumulation (48) |
|
572 |
|
572 |
|
— |
|
— |
|
| Colette Shaw |
|
566 |
|
566 |
|
— |
|
— |
|
| Timothy Herrmann |
|
450 |
|
450 |
(63) |
— |
|
— |
|
| Basil Palmeri |
|
429 |
|
429 |
|
— |
|
— |
|
| Nirav Parikh |
|
429 |
|
429 |
|
— |
|
— |
|
| The Peierls Bypass Trust (64) |
|
429 |
|
429 |
|
— |
|
— |
|
| Catherine Ainsworth |
|
378 |
|
378 |
|
— |
|
— |
|
| Andrew Baker |
|
378 |
|
378 |
|
— |
|
— |
|
| Jordan Brannick |
|
478 |
|
378 |
|
100 |
|
— |
|
| Raymond Catherall |
|
378 |
|
378 |
|
— |
|
— |
|
| Andrew Dennison |
|
378 |
|
378 |
|
— |
|
— |
|
| David Devonald |
|
378 |
|
378 |
|
— |
|
— |
|
| Oliver Holmes |
|
378 |
|
378 |
|
— |
|
— |
|
| Kay Jobson |
|
378 |
|
378 |
|
— |
|
— |
|
| Josy Joy |
|
378 |
|
378 |
|
— |
|
— |
|
| Rodney Leadbitter |
|
378 |
|
378 |
|
— |
|
— |
|
| Ian Lowman |
|
378 |
|
378 |
|
— |
|
— |
|
| Keith Lumbard |
|
378 |
|
378 |
|
— |
|
— |
|
| Charles Orizu |
|
378 |
|
378 |
|
— |
|
— |
|
| Prakash Patel |
|
378 |
|
378 |
|
— |
|
— |
|
| Daniel Pillow |
|
378 |
|
378 |
|
— |
|
— |
|
| Neil Remmer |
|
478 |
|
378 |
|
100 |
|
— |
|
| Nathan Stewart |
|
378 |
|
378 |
|
— |
|
— |
|
| Neil Thompson |
|
378 |
|
378 |
|
— |
|
— |
|
| Due Mondi Investments (65) |
|
358 |
|
358 |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
Percentage of |
|
| |
|
Shares |
|
Shares |
|
Shares |
|
Shares |
|
| |
|
Beneficially |
|
Offered |
|
Beneficially |
|
Beneficially |
|
| |
|
Owned prior |
|
by this |
|
Owned after |
|
Owned after |
|
| Name of Selling Stockholder |
|
to Offering |
|
Prospectus |
|
Offering |
|
Offering (%) (1) |
|
| Frederick B. Epstein |
|
358 |
|
358 |
|
— |
|
— |
|
| Suresh Patel |
|
358 |
|
358 |
|
— |
|
— |
|
| Jamie Polak |
|
358 |
|
358 |
|
— |
|
— |
|
| David Rarey |
|
3,073 |
|
358 |
|
2,715 |
(66) |
* |
|
| The Glen Sato & Hope G. Nakamura Trust dtd 11/01/01(67) |
|
3,401 |
|
358 |
|
3,043 |
(68) |
* |
|
| Donald Sesterhenn |
|
358 |
|
358 |
|
— |
|
— |
|
| Barry Shemaria |
|
342 |
|
342 |
|
— |
|
— |
|
| Casimir S. Skrzypzak |
|
3,044 |
|
358 |
|
2,686 |
(69) |
* |
|
| The Steven and Kaye Yost Family Trust dtd 2/7/92 (70) |
|
289 |
|
289 |
|
— |
|
— |
|
| Kathleen Levinstim |
|
358 |
|
358 |
|
— |
|
— |
|
| N. Michael Wolsonovich, Jr |
|
358 |
|
358 |
|
— |
|
— |
|
| Thomas A. Sepenzis |
|
358 |
|
358 |
|
— |
|
— |
|
| FBE Management Inc Retirement Trust (71) |
|
358 |
|
358 |
|
— |
|
— |
|
| Yehoshua Leib Fruchthandler |
|
358 |
|
358 |
|
— |
|
— |
|
| M. Jake Arjang |
|
3,044 |
|
358 |
|
2,686 |
(72) |
* |
|
| Jack Bojman |
|
357 |
|
357 |
|
— |
|
— |
|
| Fischhoff, Brian & Andrea |
|
286 |
|
286 |
|
— |
|
— |
|
| Yosef Reuven Leizerson |
|
2,293 |
|
143 |
|
2,150 |
(73) |
* |
|
| Bizdevos Ltd |
|
265 |
|
265 |
|
— |
|
— |
|
| Sydney Nelson |
|
262 |
|
262 |
(74) |
— |
|
— |
|
| Aaron Segal |
|
185 |
|
185 |
(75) |
— |
|
— |
|
| Isaac Fruchthandler |
|
1,523 |
|
179 |
|
1,344 |
(76) |
* |
|
| Shawn Pobiner |
|
143 |
|
143 |
|
— |
|
— |
|
| Gabriel Feder |
|
1,219 |
|
143 |
|
1,076 |
(77) |
* |
|
| Yitzchok Fruchthandler |
|
1,219 |
|
143 |
|
1,076 |
(78) |
* |
|
| Abraham Goldstein |
|
143 |
|
143 |
|
— |
|
— |
|
| Alon Avnon |
|
81 |
|
81 |
|
— |
|
— |
|
| Richard Harvey |
|
55 |
|
55 |
|
— |
|
— |
|
| Jane Stacey |
|
40 |
|
40 |
|
— |
|
— |
|
| * | Represents less than 1%. |
| (1) | Percentage is based on 1,713,900 shares of Common Stock outstanding as of June 10, 2024. |
| (2) | Octopus Investments Limited (“Octopus”) is the sole manager of each of Octopus Titan VCT Plc and Octopus Investments Nominees
Limited (collectively, the “Octopus Funds”). Through Octopus’s position with Octopus Funds, Octopus is deemed to control
the voting and disposition of the shares of our common stock held by the Octopus Funds. Octopus disclaims beneficial ownership of the
shares of our common stock held by the Octopus Funds except to the extent of its pecuniary interest therein. Dr. King, a member of
our board of directors until June 30, 2022, is one of the five partners of Octopus. |
| (3) | Entrepreneurs Fund General Partner Limited (“Entrepreneurs General Partner”) is the general partner of Entrepreneurs Fund
LP (“Entrepreneurs Fund”). By virtue of such relationship, Entrepreneurs General Partner may be deemed to have voting and
investment power with respect to the securities held by Entrepreneurs Fund. Entrepreneurs Fund General Partner disclaims beneficial ownership
of the shares of our common stock held by Entrepreneurs Fund except to the extent of its indirect pecuniary interest therein. Until June 2021,
Klaas de Boer, a member of our board of directors served as the managing director of Entrepreneurs Fund Management LLP, an affiliate of
Entrepreneurs Fund. |
| (4) | Mr. Orin Hirschman is the managing member of AIGH Capital Management, LLC, a Maryland limited liability company (“AIGH
CM”), which is an advisor or sub-advisor with respect to the securities held by AIGH Investment Partners, LP (“AIGH LP”),
WVP Emerging Manager Onshore Fund, LLC — AIGH Series, and WVP Emerging Manager Onshore Fund, LLC — Optimized Equity
Series, and president of AIGH Investment Partners, LLC (“AIGH LLC”). Mr. Hirschman has voting and investment control
over the securities indirectly held by AIGH CM and directly by AIGH LP and AIGH LLC. |
| (5) | Includes 41,943 shares underlying pre-funded warrants. |
| (6) | Includes (i) 38,743 shares issuable upon conversion of Series A-1 Preferred Stock, (ii) 387,543 shares issuable upon
exercise of Class A Warrants, (iii) 391,680 shares issuable upon conversion of Class B Warrants, (iv) 300,742 shares
issuable upon conversion of Class C Warrants. |
| (7) | Includes (i) 2,742 shares issuable upon conversion of Series A-1 Preferred Stock, (ii) 27,200 shares issuable upon
exercise of Class A Warrants, (iii) 29,696 shares issuable upon exercise of Class B Warrants and (iv) 24,458 shares
issuable upon conversion of Class C Warrants. |
| (8) | Includes (i) 9,943 shares issuable upon conversion of Series A-1 Preferred Stock, (ii) 99,429 shares issuable upon
exercise of Class A Warrants, (iii) 90,624 issuable upon exercise of Class B Warrants and (iv) 89,486 shares issuable
upon conversion of Class C Warrants. |
| (9) | Includes 18,929 shares underlying pre-funded warrants. |
| (10) | Includes (i) 6,057 shares issuable upon conversion of Series A-1 Preferred Stock, (ii) 60,572 shares issuable upon
exercise of Class A Warrants, (iii) 84,800 shares issuable upon exercise of Class B Warrants and (iv) 54,515 shares
issuable upon exercise of Class C Warrants. |
| (11) | Mr. Aaron Martin is the managing member of HLH Holdings LLC and has voting and investment control over the securities held by
HLH Holdings LLC. |
| (12) | Includes 715 shares underlying pre-funded warrants. |
| (13) | Includes (i) 2,286 shares issuable upon exercise of Class A Warrants and (ii) 796 shares issuable upon conversion of
Class B Warrants. |
| (14) | Mr. Martin Chopp is the general partner of The Hewlett Fund LP and has voting and investment control over the securities held
by The Hewlett Fund LP. |
| |
(15) |
Includes (i) 28,571 shares issuable upon conversion of Series A-1 Preferred Stock, (ii) 285,715 shares issuable upon exercise of Class A Warrants, (iii) 106,430 shares issuable upon exercise of Class B Warrants and (iv) 257,143 shares issuable upon the exercise of Class C Warrants. |
| (16) | Ian Jenks is our Chief Executive Officer and Chairman. |
| (17) | Includes options to acquire 18,111 shares of our common stock exercisable within 60 days of June 10, 2024. |
| (18) | Mr. Markus Solibieda is the managing director of BASF Venture Capital GmbH and has voting and investment control over the securities
held by BASF Venture Capital GmbH. |
| (19) | Mr. E. Jeffrey Peierls is the president of The Peierls Foundation, Inc. and has voting and investment control over the securities
held by The Peierls Foundation, Inc. |
| (20) | Includes shares underlying Placement Agent Warrants. |
| (21) | Mr. Paul Packer is the managing member of Globis Capital Partners L.P. and has voting and investment control over the securities
held by Globis Capital Partners L.P. |
| (22) | Includes shares underlying Placement Agent Warrants. |
| (23) |
Mr. Andrew Cader is the president of ACNYC, LLC and has voting and investment control over the securities held by ACNYC, LLC. |
| (24) |
Includes (i) 22,858 shares issuable upon exercise of Class A Warrants and (ii) 8,000 shares issuable upon exercise of Class B Warrants. |
| (25) |
Includes (i) 22,858 shares issuable upon exercise of Class A Warrants and (ii) 8,000 shares issuable upon exercise of Class B Warrants. |
| (26) |
Anne Berrien Wyman de Boer is the spouse of Mr. de Boer, a member of our board of directors. |
| (27) |
Includes 5,715 shares issuable upon exercise of Class A Warrants. Also includes (i) options to acquire 519 shares exercisable within 60 days of June 10, 2024 held by Mr. de Boer, spouse of Anne Berrien Wyman de Boer and (ii) 100 shares held by held by Mr. de Boer, spouse of Anne Berrien Wyman de Boer. |
| (28) |
Simon Ogier is our Chief Technology Officer. |
| (29) |
Includes options to acquire 5,113 shares of our common stock exercisable within 60 days of June 10, 2024. |
| (30) |
Mr. Rajvir Singh is the trustee of the Swadesh Family Trust and has voting and investment control over the securities held by the Swadesh Family Trust. |
| (31) |
Mr. Abraham Fruchthandler is the general partner of Fame Associates and has voting and investment control over the securities held by Fame Associates. |
| (32) |
Includes (i) 11,429 shares issuable upon exercise of Class A Warrants and (ii) 4,000 shares issuable upon exercise of Class B Warrants. |
| (33) |
Mr. Mark Schron is the managing member of AME Capital Group, LLC and has voting and investment control over the securities held by AME Capital Group, LLC. |
| (34) |
Includes (i) 11,429 shares issuable upon exercise of Class A Warrants and (ii) 4,000 shares issuable upon exercise of Class B Warrants. |
| (35) |
Mr. Avi Schron is the managing member of Mel Mac Alt LLC and has
voting and investment control over the securities held by Mel Mac Alt LLC. |
| (36) |
Includes (i) 429 shares issuable upon exercise of Class A Warrants and (ii) 4,000 shares issuable upon exercise of Class B Warrants. |
| (37) |
Robert Bahns served as a member of our board of directors and as our Chief Financial Officer until September 19, 2022. |
| (38) |
Mr. John Mihell is the special situation manager of DBW Investments (6) Limited and has voting and investment control over the securities held by DBW Investments (6) Limited. |
| (39) |
Mr. Reuven Dessler is the managing member of Mazel D&K and has voting and investment control over the securities held by Mazel D&K. |
| (40) |
Includes (i) 6,858 shares issuable upon exercise of Class A Warrants and (ii) 2,400 shares issuable upon exercise of Class B Warrants. |
| (41) |
Includes (i) 6,858 shares issuable upon exercise of Class A Warrants and (ii) 2,400 shares issuable upon exercise of Class B Warrants. |
| (42) |
Includes shares underlying Placement Agent Warrants. |
| (43) |
Mr. Mark D. Breen is the trustee of Mark Breen Rev Trust and has voting and investment control over the securities held by Mark Breen Rev Trust. |
| (44) |
Mr. James Coover is the trustee of Coover Living Rev Trust and has voting and investment control over the securities held by Coover Living Rev Trust. |
| (45) |
Mr. Reuven
Dessler is the manager of Five Plus Investments LLC and has voting and investment control over the securities held by Five Plus
Investments LLC. |
| (46) |
Includes (i) 4,572 shares issuable upon exercise of Class A Warrants and (ii) 1,600 shares issuable upon exercise of Class B Warrants. |
| (47) |
Mr. David. E. Weiss is the general partner of Joseph L. & Frances L. Simek Family Investments, Ltd. and has voting and investment control over the securities held by Joseph L. & Frances L. Simek Family Investments, Ltd. |
| (48) |
Mr. E. Jeffrey Peierls is the Investment Direction Adviser of UD J.N. Peierls for Brian Eliot Peierls, UD J.N. Peierls for E. Jeffrey Peierls, UW J.N. Peierls for Brian E. Peierls, UW J.N. Peierls for E. Jeffrey Peierls, UD Ethel F. Peierls Charitable Lead Trust , UD E.F. Peierls for Brian E. Peierls, UD E.F. Peierls for E. Jeffrey Peierls, UW E.S. Peierls for Brian E. Peierls-Accumulation, UD E.S. Peierls for E.F. Peierls et al, UW E.S. Peierls for E. Jeffrey Peierls — Accumulation and The Peierls Bypass Trust and has voting and investment control over the securities held by such entities. |
| (49) |
Includes 2,858 shares issuable upon exercise of Class A Warrants. |
| (50) |
Includes (i) 3,429 shares issuable upon exercise of Class A Warrants and (ii) 1,200 shares issuable upon exercise of Class B Warrants. |
| (51) |
Mr. Paul Fruchthandler is the sole member of the limited liability company that is the sole member of MPS Equity Group LLC and has voting and investment control over the securities held by MPS Equity Group LLC. |
| (52) |
Includes (i) 3,315 shares issuable upon exercise of Class A Warrants and (ii) 1,160 shares issuable upon exercise of Class B Warrants. |
| (53) |
Mr. John Mihell is the special situation manager of DBW Investments (5) Limited and has voting and investment control over the securities held by DBW Investments (5) Limited. |
| (54) |
Dr. John Abeles is the manager of the general partner of Northlea Partners LLLP and has voting and investment control over the securities held by Northlea Partners LLLP. |
| (55) |
Mr. Dennis R DeLoach Jr is the manager of DeLoach LS Investments LLC and has voting and investment control over the securities held by DeLoach LS Investments LLC. |
| (56) |
Steven DenBaars is a member of our board of directors. |
| (57) |
Includes options to acquire 268 shares of our common stock exercisable within 60 days of June 10, 2024. |
| (58) |
Includes 2,286 shares issuable upon exercise of Class A Warrants and (iii) 800 shares issuable upon exercise of Class B Warrants. |
| (59) |
Mr. Stephen Saft is the general partner of MITZ ZHU YAN, LP and has voting and investment control over the securities held by MITZ ZHU YAN, LP. |
| (60) |
Mr. David Gubbay is the manager of Gubbay Investments LLC and has voting and investment control over the securities held by Gubbay Investments LLC. |
| (61) |
Dr. Brown, our Chief Scientist, exercises dispositive and voting power over the securities owned by B Brown Consultants Ltd. |
| (62) |
Includes options to acquire 10,202 shares of our common stock exercisable within 60 days of June 10, 2024. |
| (63) |
Includes shares underlying Placement Agent Warrants. |
| (64) |
Mr. E. Jeffrey Peierls is the Investment Direction Adviser of UD J.N. Peierls for Brian Eliot Peierls, UD J.N. Peierls for E. Jeffrey Peierls, UW J.N. Peierls for Brian E. Peierls, UW J.N. Peierls for E. Jeffrey Peierls, UD Ethel F. Peierls Charitable Lead Trust , UD E.F. Peierls for Brian E. Peierls, UD E.F. Peierls for E. Jeffrey Peierls, UW E.S. Peierls for Brian E. Peierls-Accumulation, UD E.S. Peierls for E.F. Peierls et al, UW E.S. Peierls for E. Jeffrey Peierls — Accumulation and The Peierls Bypass Trust and has voting and investment control over the securities held by such entities. |
| (65) |
Mr. Robert Beadle is the president of Due Mondi Investments and has voting and investment control over the securities held by Due Mondi Investments. |
| (66) |
Includes (i) 1,143 shares issuable upon exercise of Class A Warrants and (ii) 400 shares issuable upon exercise of Class B Warrants. |
| (67) |
Mr. Glen Sato is the trustee of The Glen Sato & Hope G. Nakamura Trust dtd 11/01/01 and has voting and investment control over the securities held by The Glen Sato & Hope G. Nakamura Trust dtd 11/01/01. |
| (68) |
Includes (i)1,143 shares issuable upon exercise of Class A Warrants and (ii) 400 shares issuable upon exercise of Class B Warrants. |
| (69) |
Includes (i) 1,143 shares issuable upon exercise of Class A Warrants and (ii) 400 shares issuable upon exercise of Class B Warrants. |
| (70) |
Mr. Steven Yost is the trustee of The Steven and Kaye Yost Family Trust dtd 2/7/92 and has voting and investment control over the securities held by The Steven and Kaye Yost Family Trust dtd 2/7/92. |
| (71) |
Mr. Alan Schechter is the trustee of FBE Management Inc Retirement Trust and has voting and investment control over the securities held by FBE Management Inc Retirement Trust. |
| (72) |
Includes (i) 1,143 shares issuable upon exercise of Class A Warrants and (ii) 400 shares issuable upon exercise of Class B Warrants. |
| (73) |
Includes (i) 915 shares issuable upon exercise of Class A Warrants and (ii) 320 shares issuable upon exercise of Class B Warrants. |
| (74) |
Includes shares underlying Placement Agent Warrants. |
| (75) |
Includes shares underlying Placement Agent Warrants. |
| (76) |
Includes (i) 572 shares issuable upon exercise of Class A Warrants and (ii) 200 shares issuable upon exercise of Class B Warrants. |
| (77) |
Includes (i) 458 shares issuable upon exercise of Class A Warrants and (ii) 160 shares issuable upon exercise of Class B Warrants. |
| (78) |
Includes (i) 458 shares issuable upon exercise of Class A Warrants and (ii) 160 shares issuable upon exercise of Class B Warrants. |
PLAN OF DISTRIBUTION
The selling stockholders, which as used herein
includes donees, pledgees, transferees or other successors- in-interest selling shares of common stock or interests in shares of common
stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership or other distribution or other
transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares
of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions
may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying
prices determined at the time of sale, or at negotiated prices.
The selling stockholders may use any one or more
of the following methods when disposing of shares or interests therein:
| |
● |
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| |
● |
block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
| |
● |
purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| |
● |
an exchange distribution in accordance with the rules of the applicable exchange; |
| |
● |
privately negotiated transactions, and / or directly to one or more purchasers; |
| |
● |
through agents; |
| |
● |
through one or more underwriters in a public offering on a firm commitment or best-efforts basis; |
| |
● |
through the settlement of short sales (including short sales “against the box”), in each case subject to compliance with the Securities Act and other applicable laws; |
| |
● |
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| |
● |
broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; |
| |
● |
in other ways not involving market makers or established trading markets; |
| |
● |
by pledge to secure debts and other obligations; |
| |
● |
a combination of any such methods of sale; and |
| |
● |
any other method permitted pursuant to applicable law. |
The selling stockholders may also sell shares
under Rule 144 under the Securities Act of 1933, as amended, or Securities Act, if available, rather than under this prospectus,
provided that they meet the criteria and conform to the requirements of these provisions, including the requirements of Rule 144(i) applicable
to former “shell companies.”
The selling stockholders may, from time to time,
pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance
of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under
this prospectus, or under an amendment to this prospectus under Rule 424 or other applicable provision of the Securities Act amending
the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this
prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees,
pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale or other disposition
of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of our common stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or
pledge shares of our common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into
option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities
which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling stockholders
from the sale or other disposition of the shares of our common stock covered by this prospectus will be the price at which the shares
of our common stock are sold or otherwise disposed of, less discounts or commissions, if any. Each of the selling stockholders reserves
the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of the shares
of our common stock covered hereby to be made directly or through agents. We will not receive any of the proceeds from this offering.
However, we will receive proceeds from the exercise of the warrants if they are exercised for cash by a holder thereof.
The selling stockholders
and any underwriters, broker-dealers or agents that are involved in selling the shares of our common stock or interests therein covered
by this prospectus may be deemed to be “underwriters” within the meaning of Section 2(a)(11) of the Securities Act. In
such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of our common stock purchased
by them may be deemed to be underwriting commissions or discounts under the Securities Act. The maximum amount of any compensation to
be received by any FINRA member will not be greater than an amount that is considered fair and reasonable for the sale of any securities
being registered. Each selling stockholder has informed us that it does not as of the date hereof have any agreement or understanding,
directly or indirectly, with any person to distribute the shares of our common stock covered by this prospectus. If a selling stockholder
is deemed to be an “underwriter” within the meaning of the Securities Act, it will be subject to the prospectus delivery requirements
of the Securities Act.
To the extent required,
the shares of our common stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices,
the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set
forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement of which this
prospectus forms a part.
In order to comply with
the securities laws of some states, if applicable, the shares of our common stock may be sold in these jurisdictions only through registered
or licensed brokers or dealers. In addition, in some states shares of our common stock may not be sold unless they have been registered
or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
We have advised the selling
stockholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares of our common stock
in the market and to the activities of the selling stockholders and their affiliates. In addition, we will make copies of this prospectus
(as it may be supplemented or amended from time to time) available to the selling stockholders for the purpose of satisfying the prospectus
delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.
We have agreed to indemnify
the selling stockholders against liabilities, including certain liabilities under the Securities Act and state securities laws, relating
to the registration of the shares offered by this prospectus.
DESCRIPTION OF SECURITIES
We have authorized capital
stock consisting of 300,000,000 shares of common stock and 10,000,000 shares of preferred stock. As of June 10, 2024, we had 1,713,900
shares of common stock issued and outstanding, and 1,106 shares of Series A-1 Preferred Stock issued and outstanding. Unless stated
otherwise, the following discussion summarizes the term and provisions of our amended and restated certificate of incorporation and our
amended and restated bylaws. This description is summarized from, and qualified in its entirety by reference to, our amended and restated
certificate of incorporation and our amended and restated bylaws, which are filed as exhibits to the registration statement of which this
prospectus forms a part.
Common Stock
Voting
Rights
Each holder of common
stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors.
Our amended and restated certificate of incorporation and our amended and restated bylaws do not provide for cumulative voting rights.
Because of this, the holders of a plurality of the shares of common stock entitled to vote in any election of directors can elect all
of the directors standing for election, if they should so choose. With respect to matters other than the election of directors, at any
meeting of the stockholders at which a quorum is present or represented, the affirmative vote of a majority of the voting power of the
shares present in person or represented by proxy at such meeting and entitled to vote on the subject matter shall be the act of the stockholders,
except as otherwise required by law. The holders of one-third of the stock issued and outstanding and entitled to vote, present in person
or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders.
Dividends
Subject to preferences
that may be applicable to any then-outstanding convertible preferred stock, holders of our common stock are entitled to receive dividends,
if any, as may be declared from time to time by our board of directors out of legally available funds.
We have never paid cash
dividends on our common stock. Moreover, we do not anticipate paying periodic cash dividends on our common stock for the foreseeable future.
Any future determination about the payment of dividends will be made at the discretion of our board of directors and will depend upon
our earnings, if any, capital requirements, operating and financial conditions, contractual restrictions, including any loan or debt financing
agreements, and on such other factors as our board of directors deems relevant.
Liquidation
In the event of our liquidation,
dissolution, or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted
to the holders of any then-outstanding shares of preferred stock.
Preferred Stock
Our board of directors has
the authority, without further action by the stockholders, to issue up to 10,000,000 shares of preferred stock in one or more series and
to fix the rights, preferences, privileges and restrictions thereof. These rights, preferences, and privileges could include dividend
rights, conversion rights, voting rights, redemption rights, liquidation preferences, sinking fund terms, and the number of shares constituting
any series or the designation of such series, any or all of which may be greater than the rights of common stock. The issuance of preferred
stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive dividend payments
and payments upon liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring or preventing
change in our control or other corporate action.
Series A-1
Preferred Stock
On June 14, 2023,
we filed a Certificate of Designation of Preferences, Rights and Limitations with the Secretary of State of the State of Delaware, and
on January 29, 2024, we filed an Amended and Restated Certificate of Designation of Preferences, Rights and Limitation with the Secretary
of the State of Delaware designating 11,100 shares out of the authorized but unissued shares of its preferred stock as Series A-1
Preferred Stock with a stated value of $10,000 per share (as amended and restated, the “Series A-1 Certificate of Designation”).
The following is a summary of the principal terms of the Series A-1 Preferred Stock as set forth in the Series A-1 Certificate
of Designation is qualified in its entirety by reference to the Series A-1 Certificate of Designation, which is included in our amended
and restated certificate of incorporation, which is filed as an exhibit to the registration statement of which this prospectus forms a
part.
Dividends
The holders of Series A-1
Preferred Stock are entitled to dividends, on an as-if converted basis, equal to and in the same form as dividends actually paid on shares
of common stock, when and if actually paid. In addition, in the event that on December 14, 2024, the trailing 30-day VWAP (as defined
in the Series A-1 Certificate of Designation) is less than the then-effective Series A-1 Conversion Price, the Series A-1
Preferred Stock will begin accruing dividends at the annual rate of 19.99% of the stated value thereof (the “Series A-1 Dividend”).
The Series A-1 Dividend would be paid in cash, or, at the option of the Company if certain equity conditions are met, in shares of
common stock at a price per share equal to ninety percent (90%) of the trailing 10-day VWAP for the last 10 trading date prior to
the date the Series A-1 Dividend is paid.
Voting
Rights
The shares of Series A-1
Preferred Stock have no voting rights, except to the extent required by the Delaware General Corporation Law (the “DGCL”).
As long as any shares of Series A-1 Preferred
Stock are outstanding, we may not, without the approval of a majority of the then outstanding shares of Series A-1 Preferred Stock
which must include AIGH Investment Partners LP and its affiliates (“AIGH”) for so long as AIGH is holding at least $1,500,000
in aggregate stated value of Series A-1 Preferred Stock acquired pursuant to the Purchase Agreement (as defined in the Series A-1
Certificate of Designation) (a) alter or change the powers, preferences or rights given to the Series A-1 Preferred Stock, (b) alter
or amend our amended and restated certificate of incorporation, the Series A-1 Certificate of Designation or our amended and restated
bylaws in such a manner so as to materially adversely affect any rights given to the Series A-1 Preferred Stock, (c) authorize
or create any class of stock ranking as to dividends, redemption or distribution of assets upon a Liquidation (as defined below) senior
to, or otherwise pari passu with, the Series A-1 Preferred Stock, (d) increase the number of authorized shares of Series A-1
Preferred Stock, (e) issue any Series A-1 Preferred Stock except pursuant to the Purchase Agreement, or (f) enter into
any agreement to do any of the foregoing.
Liquidation
Upon any liquidation,
dissolution or winding-up of the Company, whether voluntary or involuntary (a “Liquidation”), the then holders of the Series A-1
Preferred Stock are entitled to receive out of the assets available for distribution to stockholders of the Company an amount equal to
100% of the stated value, plus any accrued and unpaid dividends thereon and any other fees or liquidated damages then due and owing thereon,
prior and in preference to the common stock or any other series of preferred stock.
Conversion
The Series A-1 Preferred
Stock is convertible into common stock at any time at a conversion price of $87.50, subject to adjustment for certain anti-dilution provisions
set forth in the Series A-1 Certificate of Designation (the “Series A-1 Conversion Price”). Upon conversion the
shares of Series A-1 Preferred Stock will resume the status of authorized but unissued shares of preferred stock of the Company.
Conversion at the
Option of the Holder
The Series A-1 Preferred
Stock is convertible at the then-effective Series A-1 Conversion Price at the option of the holder at any time and from time to time.
Mandatory
Conversion at the Option of the Company
So long as certain equity
conditions are satisfied, we may give notice requiring the holders to convert all of the outstanding shares of Series A-1 Preferred
Stock into shares of common stock at the then-effective Series A-1 Conversion Price.
Beneficial Ownership
Limitation
The Series A-1 Preferred
Stock cannot be converted to common stock if the holder and its affiliates would beneficially own more than 4.99% (or 9.99% at the election
of the holder) of the outstanding common stock. However, any holder may increase or decrease such percentage to any other percentage
not in excess of 9.99% upon notice to us, provided that any increase in this limitation will not be effective until 61 days after
such notice from the holder to us and such increase or decrease will apply only to the holder providing such notice.
Preemptive Rights
No holders of Series A-1
Preferred Stock will, as holders of Series A-1 Preferred Stock, have any preemptive rights to purchase or subscribe for common stock
or any of our other securities.
Redemption
The shares of Series A-1
Preferred Stock are not redeemable by the Company.
Negative Covenants
As long as any Series A-1
Preferred Stock is outstanding, unless the holders of more than 50% in stated value of the then outstanding shares of Series A-1
Preferred Stock shall have otherwise given prior written consent (which must include AIGH for so long as AIGH is holding at least $1,500,000
in aggregate stated value of Series A-1 Preferred Stock acquired pursuant to the Purchase Agreement), the Company cannot, subject
to certain exceptions, (a) enter into, create, incur, assume, guarantee or suffer to exist any indebtedness, (b) enter into,
create, incur, assume or suffer to exist any liens, (c) repay, repurchase or offer to repay, repurchase or otherwise acquire more
than a de minimis number of shares of its common stock, common stock equivalents or junior securities, (d) enter into any transaction
with any affiliate of the Company which would be required to be disclosed in any public filing with the SEC, unless such transaction is
made on an arm’s-length basis and expressly approved by a majority of the disinterested directors of the Company, (e) declare
or pay a dividend on junior securities or (f) enter into any agreement with respect to any of the foregoing.
Trading Market
There is no established
trading market for any of the Series A-1 Preferred Stock, and we do not expect a market to develop. We do not intend to apply for
a listing for any of the Series A-1 Preferred Stock on any securities exchange or other nationally recognized trading system.
Transfer Agent and Registrar
The transfer agent and registrar
for our common stock and Series A-1 Preferred Stock is VStock Transfer, LLC. The transfer agent’s address is 18 Lafayette
Place, Woodmere, NY 11598, and its telephone number is (212) 828-8436.
Anti-Takeover Effects of Certain Provisions
of Delaware Law, Our Amended and Restated Certificate of Incorporation and Our Amended and Restated Bylaws
Certain provisions of
Delaware law and certain provisions included in our amended and restated certificate of incorporation and in our amended and restated
bylaws summarized below may be deemed to have an anti-takeover effect and may delay, deter, or prevent a tender offer or takeover attempt
that a stockholder might consider to be in its best interests, including attempts that might result in a premium being paid over the market
price for the shares held by stockholders.
Preferred Stock
Our amended and restated
certificate of incorporation contains provisions that permit our board of directors to issue, without any further vote or action by the
stockholders, shares of preferred stock in one or more series and, with respect to each such series, to fix the number of shares constituting
the series and the designation of the series, the voting rights (if any) of the shares of the series and the powers, preferences, or relative,
participation, optional, and other special rights, if any, and any qualifications, limitations, or restrictions, of the shares of such
series.
Classified Board
of Directors
Our amended and restated
certificate of incorporation provides that our board of directors is divided into three classes, with the number of directors in
each class being as nearly equal in number as possible. The directors in each class serve for a three-year term, one class being
elected each year by our stockholders, with staggered three-year terms. These provisions may have the effect of deferring, delaying
or discouraging hostile takeovers, or changes in control of us or our management.
Removal of Directors
Our amended and restated
certificate of incorporation provides that stockholders may only remove a director for cause.
Director Vacancies
Our amended and restated
certificate of incorporation authorizes only our board of directors to fill vacant directorships.
No Cumulative Voting
Our amended and restated
certificate of incorporation does not provide stockholders with the right to cumulate votes in the election of directors.
Special Meetings
of Stockholders
Our amended and restated
certificate of incorporation and amended and restated bylaws provide that, except as otherwise required by law, special meetings of the
stockholders may be called only by the chairperson of our board of directors, the chief executive officer, or our board of directors.
Advance Notice
Procedures for Director Nominations
Our bylaws provide that
stockholders seeking to nominate candidates for election as directors at an annual or special meeting of stockholders must provide timely
notice thereof in writing. To be timely, a stockholder’s notice generally will have to be delivered to and received at our principal
executive offices before notice of the meeting is issued by our secretary, with such notice being served not less than 90 nor more than
120 days before the meeting. Although the amended and restated bylaws do not give the board of directors the power to approve or
disapprove stockholder nominations of candidates to be elected at an annual meeting, the amended and restated bylaws may have the effect
of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter a potential
acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of our
company.
Action by Written
Consent
Our amended and restated
certificate of incorporation and amended and restated bylaws provide that any action to be taken by the stockholders must be effected
at a duly called annual or special meeting of stockholders and may not be effected by written consent.
Amending our Certificate
of Incorporation and Bylaws
Our amended and restated
certificate of incorporation provides that the affirmative vote of at least 66 2∕3% of the votes entitled to be cast by holders
of all outstanding shares then entitled to vote, voting together as a single class, is required to amend certain provisions of our amended
and restated certificate of incorporation.
Our amended and restated
bylaws may be adopted, amended, altered or repealed by stockholders only upon approval of at least 66 2∕3% of the votes entitled
to be cast by holders of all outstanding shares then entitled to vote, voting together as a single class. Additionally, our amended and
restated certificate of incorporation provides that our bylaws may be amended, altered or repealed by the board of directors.
Authorized but
Unissued Shares
Our authorized but unissued
shares of common stock and preferred stock will be available for future issuances without stockholder approval, except as required by
the listing standards of any exchange upon which our common stock may become listed and could be utilized for a variety of corporate purposes,
including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued
and unreserved common stock and preferred stock could render more difficult or discourage an attempt to obtain control of our company
by means of a proxy contest, tender offer, merger, or otherwise.
Exclusive Jurisdiction
Our amended and restated
certificate of incorporation provides that, unless we consent to the selection of an alternative forum, the Court of Chancery of the State
of Delaware, or if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware, is the exclusive
forum for (i) any derivative action or proceeding brought on behalf of us, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any current or former director, officer, or other employee to the us or our stockholders, any action arising pursuant
to any provision of the DGCL or our certificate of incorporation or bylaws (as either may be amended from time to time), or (iv) (A) any
action asserting a claim governed by the internal affairs doctrine of the law of the State of Delaware shall, to the fullest extent permitted
by law, be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction
thereof, the federal district court of the State of Delaware and (B) the federal district courts of the United States shall be the
exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. Section 27 of the
Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act
or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to actions arising under the Exchange
Act or the rules and regulations thereunder. Although our amended and restated certificate of incorporation contains the exclusive
forum provisions described above, it is possible that a court could find that such provision is inapplicable for a particular claim or
action or that such provision is unenforceable, and our stockholders will not be deemed to have waived our compliance with the federal
securities laws and the rules and regulations thereunder.
Delaware Anti-Takeover
Statute
We are subject to Section 203
of the DGCL, which prohibits a person deemed an “interested stockholder” from engaging in a “business combination”
with a publicly held Delaware corporation for three years following the date such person becomes an interested stockholder unless
the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner
or another prescribed exception applies. Generally, an “interested stockholder” is a person who, together with affiliates
and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a
corporation’s voting stock.
Generally, a “business
combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder.
The existence of this provision may have an anti- takeover effect with respect to transactions not approved in advance by the board of
directors, such as discouraging takeover attempts that might result in a premium over the price of our common stock.
LEGAL MATTERS
The validity of the shares of our common stock
covered by this prospectus will be passed upon for us by Lowenstein Sandler LLP, New York, New York.
EXPERTS
The financial statements as of December 31,
2022 and for the year ended December 31, 2022 incorporated by reference herein have been so incorporated in reliance on the
report of BDO LLP, an independent registered public accounting firm (the report on the financial statements contains an explanatory paragraph
regarding the Company’s ability to continue as a going concern) incorporated by reference herein, given on the authority of
said firm as experts in auditing and accounting. BDO LLP, Manchester, United Kingdom, is a member of the Institute of Chartered Accountants
in England and Wales.
The financial statements as of December 31,
2023 and for the year in the period ended December 31, 2023 incorporated by reference herein have been so incorporated in reliance
on the report of Marcum, LLP, an independent registered public accounting firm incorporated by reference herein, given on the authority
of said firm as experts in auditing and accounting.
ADDITIONAL INFORMATION
We have filed with the SEC a registration statement
on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. Pursuant to SEC rules, this prospectus,
which is part of the registration statement, omits certain information, exhibits, schedules and undertakings set forth in the registration
statement. For further information pertaining to us and our securities, reference is made to our SEC filings and to the registration statement
and the exhibits and schedules to the registration statement of which this prospectus forms a part. Statements contained in this prospectus
as to the contents or provisions of any documents referred to in this prospectus are not necessarily complete, and in each instance where
a copy of the document has been filed as an exhibit to the registration statement, reference is made to the exhibit for a more complete
description of the matters involved.
In addition, registration statements and certain
other filings made with the SEC electronically are publicly available through the SEC’s web site at http://www.sec.gov. The registration
statement, including all exhibits and amendments to the registration statement, has been filed electronically with the SEC.
We are subject to the information and periodic
reporting requirements of the Exchange Act and, in accordance with such requirements, will file periodic reports, proxy statements, and
other information with the SEC. These periodic reports, proxy statements, and other information will be available for inspection and copying
at the web site of the SEC referred to above. We also maintain a website at www.smartkem.com, at which you may access these materials
free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information contained
in, or that can be accessed through, our website is not part of, and is not incorporated into, this prospectus. We have included our website
address in this prospectus solely as an inactive textual reference.
You should rely only on the information in this
prospectus and the additional information described above and under the heading “Incorporation of Certain Information by Reference”
below. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent
information, you should not rely upon it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale
is not permitted. You should assume that the information in this prospectus was accurate on the date of the front cover of this prospectus
only. Our business, financial condition, results of operations and prospects may have changed since that date.
The representations, warranties and covenants made
by us in any agreement that is filed as an exhibit to any document that is incorporated by reference into this prospectus were made solely
for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such
agreement, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or
covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied
on as accurately representing the current state of our affairs.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
information that we file with it into this prospectus, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is an important part of this prospectus. The information incorporated by
reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and
supersede information contained in this prospectus and any accompanying prospectus supplement.
We incorporate by reference the documents listed
below that we have previously filed with the SEC:
| · | our Annual Report on Form 10-K for the fiscal year ended
December 31, 2023 filed with the SEC on March 27, 2024; |
| · | our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2024 filed with the SEC on May 20, 2024; |
| · | the description of our common stock contained in our Registration
Statement on Form 8-A, filed with the SEC on May 30, 2024. |
All reports and other documents that we file with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of the registration statement
and prior to effectiveness of the registration statement and after the date of this prospectus but prior to the termination of the offering
of the securities hereunder will also be considered to be incorporated by reference into this prospectus from the date of the filing
of these reports and documents, and will supersede the information herein; provided, however, that all reports, exhibits and other
information that we “furnish” to the SEC will not be considered incorporated by reference into this prospectus. Any statement
contained in a document incorporated by reference in this prospectus or any prospectus supplement shall be deemed to be modified or superseded
to the extent that a statement contained herein, therein or in any other subsequently filed document that also is incorporated by reference
herein or therein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus or any prospectus supplement.
We will provide you without charge, upon your oral
or written request, with a copy of any or all reports, proxy statements and other documents we file with the SEC, as well as any or all
of the documents incorporated by reference in this prospectus or the registration statement (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents). Requests for such copies should be directed to SmartKem, Inc.,
Attn: Chief Financial Officer, Manchester Technology Center, Hexagon Tower, Delaunays Road, Blackley Manchester, M9 8GQ U.K.. You may
also direct any requests for documents to us by telephone at 011-44-161-721-1514.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the fees and expenses payable by us
in connection with the offering of the securities being registered. All amounts are estimated except the SEC registration fee.
| SEC registration fee | |
$ | 6,564 | * |
| Accounting fees and expenses | |
| 14,000 | |
| Legal fees and expenses | |
| 25,000 | |
| Printing and miscellaneous expenses | |
| 5,036 | |
| Total | |
$ | 50,600 | |
* Previously paid.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation
Law (the “DGCL”) provides, in general, that a corporation incorporated under the laws of the State of Delaware, as we are,
may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit
or proceeding (other than a derivative action by or in the right of the corporation) by reason of the fact that such person is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. In the case of a derivative
action, a Delaware corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought
determines such person is fairly and reasonably entitled to indemnity for such expenses.
Our amended and restated certificate of incorporation
provides that to the fullest extent permitted by the DGCL, a director shall not be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director. Our amended and restated bylaws provide that we shall indemnify and hold harmless
our directors and officers to the fullest extent permitted by applicable law, except that we will not be required to indemnify or hold
harmless any director or officer in connection with any proceeding initiated by such person unless the proceeding was authorized by our
board of directors. Under our amended and restated bylaws, such rights shall not be exclusive of any other rights acquired by directors
and officers, including by agreement.
Our amended and restated bylaws provide that we
will pay expenses to any director or officer prior to the final disposition of the proceeding, provided, however, that such advancements
shall be made only upon receipt of an undertaking by such director or officer to repay all amounts advanced if it should be ultimately
determined that such director or officer is not entitled to indemnification under the amended and restated bylaws of or otherwise.
In addition to the indemnification obligations
required by our amended and restated certificate of incorporation and amended and restated bylaws, we have entered into indemnification
agreements with each of our directors and officers. These agreements provide for the indemnification of our directors and executive officers
for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought or threatened to be brought against
them by reason of the fact that they are or were our agents.
In connection with our transaction with SmartKem
Limited (the “Exchange”), we are also party to an indemnity agreement with our former officers and directors, pursuant to
which we agreed to indemnify such former officers and directors for actions taken by them in their official capacities relating to the
consideration, approval and consummation of the Exchange and certain related transactions.
Item 16. Exhibits
Exhibit
No. |
|
Description |
| 2.1 |
|
Share
Exchange Agreement, dated as of February 23, 2021, among the Registrant, SmartKem Limited and the shareholders of SmartKem Limited
(incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on February 24,
2021) |
| |
|
|
| 3.1 |
|
Amended and Restated Certificate of Incorporation of the Registrant, as amended to date (incorporated by referenced
to Exhibit 3.1 to the Company’s Annual Report on Form 10-K filed on March 27, 2024) |
| |
|
|
| 3.2 |
|
Amended
and Restated Bylaws of the Registrant, as currently in effect (incorporated by reference to Exhibit 3.4 to the Company’s
Current Report on Form 8-K filed on February 24, 2021) |
| |
|
|
| 4.1 |
|
Form of
Pre-Funded Warrant (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on
February 24, 2021) |
| |
|
|
| 4.2 |
|
Form of
Placement Agent Warrant (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed
on February 24, 2021) |
| |
|
|
| 5.1** |
|
Opinion of Lowenstein Sandler LLP |
| |
|
|
| 23.1* |
|
Consent
of Marcum LLP |
| |
|
|
| 23.2* |
|
Consent
of BDO LLP |
| |
|
|
| 23.3** |
|
Consent of Lowenstein Sandler LLP (included in Exhibit 5.1) |
| |
|
|
| 24.1** |
|
Power of Attorney (included
on the signature page) |
| |
|
|
| 107** |
|
Filing Fee Tables |
* Filed herewith
** Previously Filed
Item 17. Undertakings
(a) 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 Security and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the 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) If
the registrant is relying on Rule 430B:
(A) 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
(B) 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 the 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, 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; or
(C) If the registrant is subject to Rule 430C,
each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be a part of and
included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.
(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 registrant undertakes that in a primary offering of securities of the 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 registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(a) Any preliminary prospectus or prospectus
of the registrant relating to the offering required to be filed pursuant to Rule 424;
(b) Any free writing prospectus relating to
the offering prepared by or on behalf of the registrant or used or referred to by the registrant;
(c) The portion of any other free writing
prospectus relating to the offering containing material information about registrant or its securities provided by or on behalf of the
registrant; and
(d) Any other communication that is an offer
in the offering made by a registrant to the purchaser.
(6) The undersigned registrant hereby undertakes
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.
(b) 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 any charter provision, by law 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 of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than 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 and will be governed by the final adjudication
of such issue.
SIGNATURES
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 Manchester, Great Britain, the United Kingdom on June 21, 2024.
| |
SMARTKEM, INC. |
| |
|
|
| |
By: |
/s/ Ian Jenks |
| |
|
Ian Jenks
Chief Executive Officer |
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities held on the dates indicated:
| Person |
|
Capacity |
|
Date |
| |
|
|
|
|
| /s/ Ian Jenks |
|
Chief Executive Officer and Director |
|
|
| Ian Jenks |
|
(Principal Executive Officer) |
|
June 21, 2024 |
| |
|
|
|
|
| /s/ Barbra C. Keck |
|
Chief Financial Officer |
|
|
| Barbra C. Keck |
|
(Principal Financial and Accounting Officer) |
|
June 21, 2024 |
| |
|
|
|
|
| * |
|
|
|
|
| Klaas de Boer |
|
Director |
|
June 21, 2024 |
| |
|
|
|
|
| * |
|
|
|
|
| Steven DenBaars |
|
Director |
|
June 21, 2024 |
| |
|
|
|
|
| * |
|
|
|
|
| Sri Peruvemba |
|
Director |
|
June 21, 2024 |
| |
|
|
|
|
| * |
|
|
|
|
| Melisa Denis |
|
Director |
|
June 21, 2024 |
| |
|
|
|
|
| *By: |
/s/ Ian Jenks |
|
| Name: |
Ian Jenks |
|
| Title: |
Attorney-in-fact |
|
Exhibit 23.1
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation
by reference in this Registration Statement of SmartKem, Inc. on the Post-Effective Amendment No. 4 to the Form S-1 on Form S-3 (File
No. 333-264182) 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. We also consent to the reference to our firm under the heading “Experts” in the
Prospectus, which is part of this Registration Statement.
/s/ Marcum LLP
Marcum LLP
New York, NY
June 21, 2024
Exhibit 23.2
CONSENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference
in the Prospectus constituting a part of this Registration
Statement on Form S-3 (No 333-264182)
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 for the year ended December 31, 2023.
Our report contains an explanatory paragraph regarding SmartKem, Inc.’s ability to continue as a going concern.
We also consent to the reference to us under the
caption “Experts” in the Prospectus.
/s/ BDO LLP
BDO LLP
Manchester, United Kingdom
June 21, 2024
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