As filed with the U.S. Securities and Exchange Commission on July 11, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Edible Garden AG Incorporated
(Exact name of registrant as specified in its charter)
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Delaware |
| 85-0558704 |
(State or other jurisdiction of incorporation or organization) |
| (I.R.S. Employer Identification No.) |
283 County Road 519
Belvidere, NJ 07823
(Address of Principal Executive Offices) (Zip Code)
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Edible Garden AG Incorporated 2022 Equity Incentive Plan
(Full title of the plan)
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James E. Kras
Chief Executive Officer
Edible Garden AG Incorporated
283 County Road 519
Belvidere, NJ 07823
(908) 750-3953
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
With copies to:
Alexander R. McClean, Esq.
Margaret K. Rhoda, Esq.
Harter Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
(585) 232-6500
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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 | ☒ | Smaller reporting company | ☒ |
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| Emerging growth company | ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This Registration Statement on Form S-8 (the “Registration Statement”) is being filed by Edible Garden AG Incorporated (the “Company”) to register an additional 300,000 shares (the “Additional Shares”) of the Company’s common stock, $0.0001 par value per share (“Common Stock”), issuable under the Edible Garden AG Incorporated 2022 Equity Incentive Plan, as amended (the “Plan”). The Additional Shares are in addition to the shares of Common Stock previously registered for issuance under the Plan pursuant to the Company’s Registration Statement on Form S-8 (File No. 333-267441) (the “Prior Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”) on September 15, 2022.
This Registration Statement relates to securities of the same class as that to which the Prior Registration Statement relates, and is submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities. Pursuant to such instruction, the contents of the Prior Registration Statement are incorporated by reference and made part of this Registration Statement, except to the extent modified, superseded, or amended by the information set forth herein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the SEC are incorporated by reference (except for portions thereof furnished or otherwise not filed with the SEC pursuant to Items 2.02 or 7.01 of Form 8-K and corresponding information furnished under Item 9.01 of Form 8-K, which are deemed not to be incorporated by reference into this Registration Statement):
| · | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on March 22, 2023 (the “2022 Form 10-K”). |
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| · | The Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023, filed on May 15, 2023. |
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| · | The Company’s Current Reports on Form 8-K filed on January 10, 2023, January 25, 2023, January 31, 2023, February 8, 2023, February 15, 2023, April 10, 2023 and June 9, 2023. |
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| · | The Company’s description of its Common Stock contained in the registration statement on Form 8-A, filed with the SEC on April 29, 2022, and any amendment or report filed for the purpose of updating such description (including Exhibit 4.9 to the 2022 Form 10-K). |
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) subsequent to the effective date of this Registration Statement (except for the portions thereof furnished or otherwise not filed with the SEC which are deemed not to be incorporated by reference into this Registration Statement), but prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or de-registering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such statement.
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Item 8. Exhibits.
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| Form S-1 |
| 333-260655 |
| 3.1 |
| November 1, 2021 | ||
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| Certificate of Amendment to the Certificate of Incorporation, filed September 8, 2021. |
| Form S-1 |
| 333-260655 |
| 3.2 |
| November 1, 2021 | |
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| Certificate of Amendment to the Certificate of Incorporation, filed May 3, 2022. |
| Form 10-Q |
| 001-41371 |
| 3.1 |
| June 21, 2022 | |
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| Certificate of Amendment to the Certificate of Incorporation, filed January 24, 2023. |
| Form 8-K |
| 001-41371 |
| 3.1 |
| January 25, 2023 | |
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| Certificate of Amendment to the Certificate of Incorporation, filed June 8, 2023. |
| Form 8-K |
| 001-41371 |
| 3.1 |
| June 9, 2023 | |
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| Amended and Restated Bylaws of Edible Garden AG Incorporated. |
| Form S-1/A |
| 333-260655 |
| 3.4 |
| December 21, 2021 | |
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| Form S-1/A |
| 333-260655 |
| 10.22 |
| January 19, 2022 | ||
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| First Amendment to the Edible Garden AG Incorporated 2022 Equity Incentive Plan. |
| Form 8-K |
| 001-41371 |
| 3.1 |
| June 9, 2023 | |
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| Filed herewith | ||
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| Consent of Marcum LLP, independent registered public accounting firm. |
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| Filed herewith | |
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23.2 |
| Consent of Harter Secrest & Emery LLP (included in Exhibit 5.1). |
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| Filed herewith |
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| Filed herewith | ||
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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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Belvidere, State of New Jersey, on July 11, 2023.
| EDIBLE GARDEN AG INCORPORATED |
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| By: | /s/ James E. Kras |
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| Name: | James E. Kras |
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| Title: | Chief Executive Officer and President |
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of James E. Kras and Michael James, and each of them acting individually, as his true and lawful attorney-in-fact and agent with full powers of substitution and resubstitution, to act for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act, and any other documents in connection therewith), and to file the same, with all exhibits thereto, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Each of the undersigned has executed this power of attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.
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| Date |
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/s/ James E. Kras |
| Chief Executive Officer, President and Director |
| July 11, 2023 |
James E. Kras |
| (principal executive officer) |
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/s/ Michael James |
| Chief Financial Officer, Treasurer, Secretary and Director |
| July 11, 2023 |
Michael James |
| (principal financial and accounting officer) |
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/s/ Pamela DonAroma |
| Director |
| July 11, 2023 |
Pamela DonAroma |
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/s/ Mathew McConnell |
| Director |
| July 11, 2023 |
Mathew McConnell |
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/s/ Ryan Rogers |
| Director |
| July 11, 2023 |
Ryan Rogers |
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