As filed with the Securities and Exchange Commission on July 18, 2018
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
(state of other jurisdiction of
Incorporation or organization)
3960 Howard Hughes Parkway, Suite 500
Las Vegas, NV 89109
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
2018 Professional/Consultant Stock Compensation Plan
(Full Title of the Plan)
President and Chief Executive Officer
3960 Howard Hughes Parkway, Suite 500
Las Vegas, NV 89169
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Indicate by check mark whether registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|Large accelerated filer||☐||Accelerated Filer||☐|
|Non-accelerated filer||☐||Smaller reporting company||☒|
CALCULATION OF REGISTRATION FEE
Title Of Securities To Be Registered
To Be Registered (1)
Per Share (2)
Offering Price (2)
|Amount Of Registration Fee (2)|
|Common Stock, $.001 par value per share||20,000,000 shares||$0.06||$1,200,000||$149.40|
|(1)||Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock attributable to these registered shares which become issuable under the 2018 Professional/Consultant Stock Compensation Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s Common Stock.|
|(2)||Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933. The above calculation is based on the last reported price as reported on the OTCQB Marketplace on July 16, 2018, which was $0.0575 per share.|
Proposed sales to take place as soon after the effective date of the Registration Statement as awards granted under the above-named plan are granted, exercised and/or distributed.
On May 2, 2018, the Board of Directors of SmartMetric, Inc. (the “Company”) approved the Plan to, among other things, make available 20,000,000 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), for stock-based awards thereunder. This Registration Statement on Form S-8 is being filed with the United States Securities and Exchange Commission for the purpose of registering 20,000,000 shares of Common Stock issuable pursuant to the Plan.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the introductory note to Part I of Form S-8. The documents containing the information specified in Part I have been or will be delivered to the participants in the Plan as required by Rule 428(b) under the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
In this Registration Statement, SmartMetric, Inc., is sometimes referred to as “Registrant,” “we,” “us” or “our.”
Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are incorporated by reference in this Section 10(a) Prospectus) and other documents required to be delivered to eligible employees, non-employee directors and consultants, pursuant to Rule 428(b), are available without charge by contacting:
Chief Executive Officer
3960 Howard Hughes Parkway, Suite 500
Las Vegas, NV 89169
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (“SEC”) allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this Registration Statement the following documents previously filed with the SEC:
|(a)||Our Annual Report on Form 10-K for the fiscal year ended June 30, 2017, filed with the SEC on October 13, 2017;|
|(b)||Our Amended Annual Report on Form 10-K/A for the fiscal year ended June 30, 2017, filed with the SEC on October 27, 2017;|
|(c)||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’s Annual Report referred to in a. above; and|
|(d)||the description of our common stock contained in our Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on November 13, 2012, including any amendment or reports filed for the purpose of updating such descriptions.|
In addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such statements as set forth therein. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which also is incorporated or 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.
Under no circumstances shall any information furnished under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4. Description of Securities.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers.
Our directors and officers are indemnified as provided by the Nevada Revised Statutes and our Bylaws. These provisions provide that we shall indemnify a director or former director against all expenses incurred by him by reason of him acting in that position. The directors may also cause us to indemnify an officer, employee or agent in the same fashion.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of Registrant pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Item 8. Exhibits.
The list of exhibits is set forth under “Exhibit Index” at the end of this Registration Statement and is incorporated herein by reference.
Item 9. 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statemen.
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 statemen;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) 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 Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in 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.
(B) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the 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.
(C) 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 the foregoing provisions, 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 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the 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 Act and will be governed by the final adjudication of such issue.
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 Las Vegas, in the State of Nevada, on this 18th day of July, 2018.
|By:||/s/ Chaya Hendrick|
Chief Executive Officer and President
(Principal Executive Officer)
|By:||/s/ Jay Needelman|
Chief Financial Officer
(Principal Financial and Accounting Officer)
Each person whose signature appears below constitutes and appoints Chaya Hendrick, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, severally, for him and in his name, place and stead, in any and all capacities, in connection with the Registrant’s Registration Statement on Form S-8 under the Securities Act of 1933, including to sign any and all amendments (including post-effective amendments or supplements) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, each acting alone, 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 he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
By: /s/ Chaya Hendrick
|Chief Executive Officer, President and Director (Principal Executive Officer)||July 18, 2018|
By: /s/ Jay Needelman
|Chief Financial Officer and Director (Principal Financial and Accounting Officer)||July 18, 2018|
By: /s/ Elizabeth Ryba
|Director||July 18, 2018|
INDEX TO EXHIBITS
|Incorporated by Reference|
|File No.||Filing Date|
|4.01(i)||Articles of Incorporation of SmartMetric, Inc. filed 12/18/02||SB-2||3.1||333-118801||9/3/04|
|4.0(ii)||Amendment to Articles of Incorporation dated 12/11/09||8-K||3.1||333-118801||12/18/09|
|4.01(iii)||Amendment to Articles of Incorporation dated June 8, 2016||10-K||3.5||000-54853||9/28/16|
|4.02(i)||Certificate of Designation of Series B Preferred Stock||8-K||3.2||333-118801||12/18/09|
|4.02(ii)||Amendment to Certificate of Designation of Series B Preferred Stock dated 11/5/14||10-Q||3.1||000-54853||11/14/14|
|4.03(iii)||Amendment to Certificate of Designation of Series B Preferred Stock dated 6/8/16||10-K||3.4||000-54853||9/28/16|
|4.04(i)||Amended and Restated Bylaws of SmartMetric||8-K||3.1||000-54853||4/26/16|
|4.05||Specimen Common Stock Certificate of SmartMetric, Inc.||SB-2||4.1||333-118801||9/3/04|
|5.1||Opinion of McMurdo Law Group, LLC||*|
|10.1||2018 Professional/Consultant Stock Compensation Plan||*|
|23.1||Consent of AMC Auditing, LLC||*|
|23.2||Consent of McMurdo Law Group, LLC (see Exhibit 5.1)||*|
|24.1||Power of Attorney (included in signature page)||*|
* Filed herewith
MCMURDO LAW GROUP, LLC
Matthew C. McMurdo | 917 318 2865 | firstname.lastname@example.org
Date: July 18, 2018
1185 Avenue of the Americas
3rd Floor New York,
VIA ELECTRONIC TRANSMISSION
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Form S-8 Registration Statement
Ladies and Gentlemen:
We refer to the above-captioned registration statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), filed by SmartMetric, Inc., a Nevada corporation (the “Company”), with the Securities and Exchange Commission.
We have examined the originals, photocopies, certified copies or other evidence of such records of the Company, certificates of officers of the Company and public officials, and other documents as we have deemed relevant and necessary as a basis for the opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as certified copies or photocopies and the authenticity of the originals of such latter documents.
Based on our examination mentioned above, we are of the opinion that the securities being issued pursuant to the Registration Statement are duly authorized and will be, when so issued, legally and validly issued, and fully paid and non-assessable.
McMurdo Law Group, LLC
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving the foregoing consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations of the Securities and Exchange Commission.
|MCMURDO LAW GROUP, INC.|
|/s/ Matthew McMurdo, Esq.|
|Matthew McMurdo, Esq.|
McMurdo Law Group, LLC
2018 PROFESSIONAL/CONSULTANT STOCK COMPENSATION PLAN
1. Purpose. The purpose of this Plan is to provide compensation in the form of shares of Common Stock, par value $0.001 per share, of SmartMetric, Inc. (the “Company”) to eligible professionals, advisors, and consultants that have previously rendered services or that will render services during the term of this 2018 Professional/Consultant Stock Compensation Plan (hereinafter referred to as the “Plan.”)
2. Administration. (a) This Plan shall be administered by the Company’s Board of Directors (the “Board”) who may from time to time issue orders or adopt resolutions, not inconstant with the provisions of this Plan, to interpret the provisions and supervise the administration of this Plan. The President shall make initial determinations as to which professionals, advisors, and consultants will be considered to receive shares under this Plan and will provide a list to the Board. All final determinations shall be by the affirmative vote of a majority of the members of the Board at a meeting called for such purpose, or reduced to writing and signed by a majority of the members of the Board. Subject to the Company’s Bylaws, all decisions made by the Board in selecting eligible professionals, advisors, and consultants (hereinafter referred to as Consultants), establishing the number of shares, and construing the provisions of this Plan shall be final, conclusive and binding on all persons including the Company, shareholders, employees and Consultants.
(b) The Board may from time to time appoint a Consultants Plan Committee, consisting of at least one member of the Board and one officer, none of whom shall be eligible to participate in the Plan while members of the Committee. The Board may delegate to such Committee power to select the particular Consultants that are to receive shares, and to determine the number of shares to be allocated to each such Consultant.
(c) If the Securities and Exchange Commission (the “SEC”) rules and/or regulations relating to the registration of shares of Common Stock pursuant to a Registration Statement on Form S-8 should change during the terms of this Plan, the Board shall have the power to alter this Plan to conform to such changes.
3. Eligibility. Shares shall be granted only to Consultants that are within that class who are eligible to be granted shares registered pursuant to a Registration Statement on Form S-8.
4. Shares Subject to the Plan. The total number of shares of Common Stock to be subject to this Plan is 20,000,000. The shares subject to the Plan will be registered with the SEC on a Registration Statement on Form S-8.
5. Death of Consultant. If a Consultant dies while he is a Consultant to the Company or of any subsidiary, or within 90 days after termination, the shares, to the extent that the Consultant was to be issued shares under Plan, may be issued to his personal representative or the person or persons to whom his rights under the plan shall pass by his will or by the applicable laws of descent and distribution.
6. Termination of Consultant, Retirement or Disability. If a Consultant shall cease to be retained by the Company for any reason (including retirement and disability) other than death after he shall have continuously been so retained for his specified term, he may, but only within the three-month period immediately following such termination, request his pro-rata number of shares for his services already rendered.
7. Termination of the Plan. This Plan shall terminate one year after its adoption by the Board.
At such time, any shares that remain unsold shall be removed from registration by means of a post-effective amendment to the Form S-8.
8. Effective Date of the Plan. This Plan shall become effective upon its adoption by the Board.
[-Signature page follows-]
CERTIFICATION OF ADOPTION
(By the Board of Directors)
The undersigned, being the members of the Board of Directors of Smartmetric, Inc. hereby certifies that the foregoing Plan was adopted by a unanimous vote of the Board of Directors on May 2, 2018.
/s/ C. Hendrick
C. Hendrick, Director
/s/ Jay Needelman
Jay Needelman, Director
/s/ Elizabeth Ryba
Elizabeth Ryba, Director
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the SmartMetric, Inc., of our report dated October 12, 2017 with respect to the financial statements of SmartMetric, Inc., included in its Annual Report (Form 10-K) for the year ended June 30, 2017.
/s/ AMC Auditing
Las Vegas, Nevada
July 18, 2018