As filed with the Securities and Exchange Commission
on January 12, 2023.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES
ACT OF 1933
MOLEKULE GROUP, INC.
(Exact name of registrant as specified in
its charter)
| Delaware |
45-3213164 |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
| |
|
| 10455 Riverside Drive |
|
| Palm Beach Gardens, Florida |
33410 |
| (Address of Principal Executive Offices) |
(Zip Code) |
MOLEKULE GROUP, INC. 2021 INCENTIVE
AWARD PLAN
(Full title of the plan)
Jason DiBona
c/o Molekule Group, Inc.
10455 Riverside Drive
Palm Beach Gardens, FL 33410
(833) 652-5326
(Name, address and telephone number, including
area code, of agent for service)
Copies to:
Valerie Ford Jacob,
Esq.
Freshfields Bruckhaus
Deringer US LLP
601 Lexington Avenue
New York, New York
10022
(212) 277-4000
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 the Securities Act. ¨
EXPLANATORY NOTE
On January 12, 2023,
Molekule Group, Inc. (f/k/a AeroClean Technologies, Inc.) (the “Registrant”) completed an acquisition of Molekule, Inc.,
a Delaware corporation (“Molekule”), pursuant to an Agreement and Plan of Merger dated as of October 3, 2022 (the “Merger
Agreement”) by and among the Registrant, Air King Merger Sub Inc., a Delaware corporation and direct wholly owned subsidiary of
the Registrant (“Merger Sub”), and Molekule. Pursuant to the Merger Agreement, Merger Sub merged with and into Molekule,
with Molekule continuing as the surviving entity and a wholly owned subsidiary of the Registrant (the “Merger”). In connection
with the closing of the Merger, the Registrant changed its name from AeroClean Technologies, Inc. to Molekule Group, Inc.
The purpose of this Registration
Statement on Form S-8 is to register 5,408,083 additional shares of common stock, par value $0.01 per share (the “Shares”),
of the Registrant, to be reserved for issuance under the Molekule Group, Inc. 2021 Incentive Award Plan (f/k/a, the AeroClean Technologies,
Inc. 2021 Incentive Award Plan, the “Incentive Award Plan”), which are in addition to the 1,386,364 Shares under the Incentive
Award Plan registered on the Registration Statement on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the
“Commission”) on November 29, 2021 (File No. 333-261396) and the 277,552 Shares under the Incentive Award Plan registered
on the Registration Statement on Form S-8 filed by the Registrant with the Commission on May 12, 2022 (File No. 333-264889) (together,
the “Prior Registration Statements”). The 5,408,083 additional Shares represent: (i) 1,500,000 Shares approved by the Registrant’s
stockholders to be reserved for issuance under the Incentive Award Plan, effective May 11, 2022, (ii) 800,000 Shares approved by the
Registrant’s stockholders to be reserved for issuance under the Incentive Award Plan, effective October 3, 2022, (iii) 309,939
Shares reserved for issuance under the Incentive Award Plan effective January 1, 2023 by operation of the “evergreen” provision
contained in the Incentive Award Plan and (iv) 2,798,144 Shares that represent shares of Molekule common stock that were reserved for
issuance pursuant to Molekule’s 2015 Stock Plan (the “2015 Plan”) as adjusted into Shares by the exchange ratio in
the Merger; such reserve was assumed by the Registrant and may be used to make grants to certain employees and service providers of the
Registrant following the Merger without the requirement for stockholder approval in accordance with Nasdaq Rule 5635(c).
This Registration Statement
relates to securities of the same class as those to which the Prior Registration Statements relate and is submitted in accordance with
General Instruction E to Form S-8 regarding Registration of Additional Securities. Pursuant to Instruction E of Form S-8, the contents
of the Prior Registration Statements are incorporated herein by reference and made part of this Registration Statement, except as amended
hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Information required by
Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the “Securities Act”), and the “Note” to Part I of Form S-8. The documents
containing the information specified in this Part I of Form S-8 will be sent or given to the participants in the Incentive Award Plan
covered by this Registration Statement, as specified by the Commission, pursuant to Rule 428(b)(1) under the Securities Act. Such documents
are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents
filed by the Registrant with the Commission are incorporated as of their respective dates in this Registration Statement by reference:
| (b) | All other reports filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), since the end of the fiscal year covered by the Registrant document referred
to in (a) above; and |
All other documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except for any portions of the Registrant’s
Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with
the Commission, and other documents or information deemed furnished but not filed under the rules of the Commission), prior to the filing
of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document all or a portion of which
is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits
The exhibits listed on
the exhibit index at the end of this Registration Statement are included in this Registration Statement.
EXHIBITS
| Exhibit No. |
| Description |
| 4.1 |
| Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's Form 8-K (File No. 001-41096) filed with the Commission by the Registrant
on January 12, 2023) |
| |
| |
| 4.2 |
| Certificate of Amendment of Amended and Restated Certificate of Incorporation, dated January 12, 2023 (incorporated by reference to Exhibit 3.2 to the Registrant's Form 8-K (File No. 001-41096) filed with the Commission by the Registrant
on January 12, 2023) |
| |
| |
| 4.3 |
| Second
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to the Registrant's Form 8-K (File No. 001-41096) filed with the Commission by the Registrant
on January 12, 2023) |
| |
| |
| 4.4* |
| Form
of Common Stock Certificate of the Registrant |
| |
| |
| 5.1* |
|
Opinion of Freshfields Bruckhaus Deringer
US LLP, counsel to the Registrant, regarding the legality of the securities being offered hereby (including consent) |
| |
|
|
| 23.1* |
|
Consent
of Citrin Cooperman & Company, LLP, Independent Registered Public Accounting Firm for the Registrant |
| |
| |
| 23.2* |
| Consent
of PricewaterhouseCoopers LLP, Independent Accountants for Molekule, Inc. |
| |
| |
| 23.3* |
| Consent
of Freshfields Bruckhaus Deringer US LLP (included in Exhibit 5.1) |
| |
| |
| 24.1* |
|
Power of Attorney (included as part of the signature pages to this Registration Statement) |
| |
|
|
| 99.1 |
|
Molekule Group, Inc. 2021 Incentive Award Plan (incorporated by reference to Exhibit 99.1
to the Registrant’s Registration Statement on Form S-8 (File No. 333-261396) filed with the Commission by the Registrant on November
29, 2021) |
| |
|
|
| 99.2 |
| Amendment to Molekule Group, Inc. 2021 Incentive Award Plan
(incorporated by reference to Annex F of the Registrant’s Registration Statement on Form S-4 (File
No. 333-268872) filed with the Commission by the Registrant on December 19, 2022. |
| |
| |
| 107* |
| Filing Fee Table |
* Filed herewith
SIGNATURES
The Registrant. Pursuant
to the requirements of the Securities Act, 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 Palm Beach Gardens, State of Florida on the 12th day of January, 2023.
| |
By: |
/s/ Jason DiBona |
| |
|
Name: Jason DiBona |
| |
|
Title: Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Jason DiBona and Ryan Tyler as such
person’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in
such person’s name, place and stead, in any and all capacities, to sign any and all amendments to the Registration Statement, including
post-effective amendments, and registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to
file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and
does hereby grant unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact and agent, or any substitute therefor, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated
on the 12th day of January, 2023:
Name |
Title
|
| /s/
Jason DiBona |
Chief
Executive Officer (Principal Executive Officer) |
| Jason DiBona |
| |
|
| /s/
Ryan Tyler |
Chief
Financial Officer (Principal Financial Officer and Principal
Accounting Officer) |
| Ryan Tyler |
| |
|
| /s/
Amin J. Khoury, Ph.D. (Hon) |
Chairman
of the Board |
| Amin J. Khoury, Ph.D. (Hon) |
| |
|
| /s/
David Helfet, M.D. |
Director |
| David Helfet, M.D. |
| |
|
| /s/
Michael Senft |
Director |
| Michael Senft |
| |
|
| /s/
Thomas P. McCaffrey |
Director |
| Thomas P. McCaffrey |
| |
|
| /s/
Heather Floyd |
Director |
| Heather Floyd |
| |
|
| /s/
Timothy J. Scannell |
Director |
| Timothy J. Scannell |
| |
|
| /s/
Stephen M. Ward, Jr. |
Director |
| Stephen M. Ward, Jr. |
| |
/s/ Brad Feld |
Director |
|
Brad Feld |
|
Exhibit 4.4
| |
|
|
| NUMBER |
|
NUMBER |
| |
|
C- |
| |
|
SHARES |
| |
|
SEE REVERSE FOR CERTAIN
DEFINITIONS |
| |
|
CUSIP 007744 105 |
MOLEKULE GROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE
COMMON STOCK
This Certifies that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.01 EACH
OF THE COMMON STOCK OF
MOLEKULE GROUP, INC.
(THE “CORPORATION”)
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this certificate properly endorsed.
This certificate is not valid unless countersigned by the Transfer
Agent and registered by the Registrar.
Witness the seal of the Corporation and the facsimile signatures of
its duly authorized officers.
| Secretary |
|
[Corporate Seal]
Delaware |
|
Chief Executive Officer |
| |
|
|
|
|
MOLEKULE GROUP, INC.
The Corporation will furnish without charge to each stockholder who
so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock
or series thereof of the Corporation and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate
and the shares represented thereby are issued and shall be held subject to all the provisions of the Certificate of Incorporation and
all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may be obtained
from the secretary of the Corporation), to all of which the holder of this certificate by acceptance hereof assents. The following abbreviations,
when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to
applicable laws or regulations:
| TEN COM |
— |
as tenants in common |
UNIF GIFT MIN ACT |
— |
|
Custodian |
|
| TEN ENT |
— |
as tenants by the entireties |
|
|
(Cust) |
|
(Minor) |
| JT TEN |
— |
as joint tenants with right of survivorship and not as tenants in common |
|
|
under Uniform Gifts to Minors Act |
| |
|
|
|
|
(State) |
Additional abbreviations may also be used though not in the above list.
For value received, hereby sells, assigns
and transfers unto
| |
| (PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S)) |
| (PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S)) |
| |
| |
| |
| Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitutes and appoints |
| Attorney to transfer the said stock on the books of the within named Company with full power of substitution in the premises. |
Dated:
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
| |
| Signature(s) Guaranteed: |
| By |
| |
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Exhibit 5.1
Molekule Group, Inc.
10455 Riverside Drive
Palm Beach Gardens, FL 33410
|
New York
601 Lexington Avenue, 31st Floor
New York, NY 10022
T +1 (212) 277-4000
www.freshfields.com
|
January 12, 2023
Ladies and Gentlemen:
We are acting as counsel to Molekule Group, Inc.,
a Delaware corporation (the Company), in connection with the preparation and filing with the Securities and Exchange Commission
(the Commission) of a registration statement on Form S-8 (as amended from time to time, the Registration Statement), under
the Securities Act of 1933, as amended (the Securities Act), relating to 5,408,083 shares of common stock, par value $0.01
per share, of the Company (the Shares), issuable pursuant to the Molekule Group, Inc. 2021 Incentive Award Plan (f/k/a,
the AeroClean Technologies, Inc. 2021 Incentive Award Plan, the Plan).
This opinion is confined to the General Corporation
Law of the State of Delaware, as currently in effect. Accordingly, we express no opinion herein with regard to any other laws. The opinion
expressed herein is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated
herein. We do not undertake to advise you of changes in law or facts that may come to our attention after the date of this letter.
We have examined and have relied as to matters
of fact upon such corporate and other records, agreements, documents and other instruments and certificates or comparable documents of
public officials and of officers and representatives of the Company and such other persons, and we have made such other investigations,
as we have deemed relevant and necessary as a basis for the opinion expressed below.
In our examination, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals and the conformity
with authentic originals of all documents submitted to us as copies. As to any facts material to the opinion expressed herein that we
did not independently establish or verify, we have relied, without independent verification, upon oral or written statements and representations
of public officials, officers and other representatives of the Company. We have also assumed the due authorization, execution and delivery
of all documents by all persons other than the Company where due authorization, execution and delivery are prerequisites to the effectiveness
thereof. We have also assumed that the individual grants or awards under the Plan have been duly authorized by all necessary corporate
action and duly granted or awarded and exercised in accordance with the requirements of law and the Plan (and the agreements and awards
duly adopted hereunder and in accordance therewith).
Freshfields Bruckhaus Deringer is an
international legal practice operating through Freshfields Bruckhaus Deringer US LLP, Freshfields Bruckhaus Deringer LLP, Freshfields
Bruckhaus Deringer (a partnership registered in Hong Kong), Freshfields Bruckhaus Deringer Law office, Freshfields Bruckhaus Deringer
Foreign Law Office, Studio Legale associato a Freshfields Bruckhaus Deringer, Freshfields Bruckhaus Deringer Rechtsanwälte Steuerberater
PartG mbB, Freshfields Bruckhaus Deringer Rechtsanwälte PartG mbB and other associated entities and undertakings. For further regulatory
information please refer to www.freshfields.com/support/legal-notice.
Based upon the foregoing, and subject to limitations,
qualifications and assumptions set forth herein, we are of the opinion that the Shares have been authorized by the Company and, when the
Shares are issued by the Company in accordance with the terms of the Plan and the applicable award agreements pursuant to which the awards
related to the Shares are made, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not hereby admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act.
Sincerely yours,