As filed with the Securities and Exchange Commission on September 15, 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
REMARK HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
| | | | | | | | | | | | | | |
| Delaware | | | | 33-1135689 |
(State or Other Jurisdiction of
Incorporation or Organization) | | | | (I.R.S. Employer Identification Number) |
| | | | |
| | 800 S. Commerce St.
Las Vegas, NV 89106
702-701-9514 | | |
| | (Address, including ZIP code, and telephone number, including area code, of Registrant’s principal executive offices) | | |
| | | | |
| | 2022 Incentive Plan | | |
| | (Full Title of the Plan) | | |
| | | | |
| | Kai-Shing Tao Chairman and Chief Executive Officer Remark Holdings, Inc. 800 S. Commerce St. Las Vegas, NV 89106 (702) 701-9514 | | |
| | (Name, Address Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) | | |
| | | | |
| | With a copy to: Leslie Marlow, Esq. Patrick J. Egan, Esq. Hank Gracin, Esq. Blank Rome LLP 1271 Avenue of the Americas New York, New York 10020 Tel: (212) 885-5000 | | |
| | (Name, Address and Telephone Number) | | |
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 | ☑ |
| | | 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
Remark Holdings, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), 1,000,000 shares of common stock, par value $0.001 per share (the “Common Stock”), to be offered and sold under the Registrant’s 2022 Incentive Plan (hereinafter referred to as the “Plan”).
On December 21, 2022, the Registrant effected a 1-for-10 reverse split of its Common Stock (the “Reverse Split”). The number of shares being registered in this Registration Statement has been retroactively adjusted to reflect the effect of the Reverse Split.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
*The information specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule 428. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The Securities and Exchange Commission (the “Commission”) allows us to “incorporate by reference” the information we file with it which means that we can disclose important information to you by referring you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the Commission will automatically update and supersede this information. The Commission file number for the documents incorporated by reference in this prospectus is 001-33720. We incorporate by reference the documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), between the date of this prospectus and the termination of the offering:
•Our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on April 17, 2023, as amended on May 1, 2023;
•Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2023, filed with the SEC on May 22, 2023;
•Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2023, filed with the SEC on August 14, 2023;
•Our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January 11, 2023, January 12, 2023, March 16, 2023, May 2, 2023, July 18, 2023, August 16, 2023 and September 8, 2023; and
•The description of our common stock set forth in (i) our registration statement on Form 8-A12B, filed with the SEC on October 3, 2007 (File No. 001-33720) and (ii) Exhibit 4.7—Description of Registrant’s Securities to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on April 17, 2023, as amended on May 1, 2023.
All other reports and documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) shall be deemed to be incorporated by reference in this Registration Statement and to be a part of this Registration Statement from the respective date of filing of each of those reports or documents until the filing of a post-effective amendment to this Registration Statement which indicates either that all securities offered by this Registration Statement have been sold or which deregisters all of the securities under this Registration Statement then remaining unsold.
Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Our Charter provides that, to the fullest extent permitted by the General Corporation Law of the State of Delaware (the “DGCL”), our directors shall not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director. Each of our Charter and Bylaws also provide as follows:
(a)The Company shall 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, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that the person is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
(b)The Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
(c)To the extent that a present or former director or officer of the Company has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in sections (a) and (b) above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
(d)Any indemnification under sections (a) and (b) above (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in sections (a) and (b) above. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Company.
We have obtained liability insurance covering our directors and executive officers for claims asserted against them or incurred by them in such capacity.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits.
Unless otherwise noted, the Commission file number for the documents listed below is 001-33720.
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| | | | Incorporated Herein
By Reference To |
| Exhibit Number | | Description | | Document | | Filed On | | Exhibit Number |
| 4.1 | | | | 8-K | | 12/30/2014 | | 3.1 |
| 4.2 | | | | 8-K | | 01/12/2016 | | 3.1 |
| 43 | | | | 8-K | | 06/08/2016 | | 3.1 |
| 4.4 | | | | 8-K | | 04/11/2017 | | 3.1 |
| 4.5 | | | | 8-K | | 07/09/2021 | | 3.1 |
| 4.6 | | | | 8-K | | 12/21/2022 | | 3.1 |
| 4.7 | | | | 8-K | | 02/13/2015 | | 3.1 |
| 4.8 | | | | 10-K | | 03/23/2012 | | 4.1 |
| 4.9 | | | | 8-K | | 09/26/2016 | | 4.1 |
| 4.10 | | | | 8-K | | 03/04/2020 | | 4.1 |
| 4.11 | | | | 8-K | | 09/07/2021 | | 4.1 |
| 4.12 | | | | 8-K | | 09/30/2021 | | 4.1 |
| 4.13 | | | | 8-K | | 09/30/2021 | | 4.2 |
| 4.14 | | | | 10-K | | 03/31/2021 | | 4.4 |
| 4.15 | | | | S-1 (333-
268224) | | 11/15/2022 | | 4.8 |
| 4.16 | | | | 8-K | | 03/16/2023 | | 4.1 |
5.1(1) | | | | | | | | |
23.1(1) | | | | | | | | |
23.2(1) | | | | | | | | |
24.1(1) | | | | | | | | |
107(1) | | | | | | | | |
(1)Filed herewith.
Item 17. Undertakings.
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, as amended;
ii.To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement;
iii.To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in the registration statement; 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 periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 that remain unsold at the termination of the offering.
4.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.
5.Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 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 has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized, in the City of Las Vegas, State of Nevada, on September 15, 2023.
| | | | | | | | | | | | | | |
| | | | REMARK HOLDINGS, INC. |
| | | | |
| | By: | | /s/ Kai-Shing Tao |
| | Name: | | Kai-Shing Tao |
| | Title: | | Chief Executive Officer and Chairman of the Board |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Kai-Shing Tao as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him/her and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) 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, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-8 has been signed by the following persons in the capacities and on the date indicated.
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| Signature | | Title | | Date |
| | | | |
| /s/ Kai-Shing Tao | | | | |
| Kai-Shing Tao | | Chief Executive Officer and Chairman
(principal executive, financial and accounting officer) | | September 15, 2023 |
| | | |
| | | | |
| /s/ Theodore Botts | | | | |
| Theodore Botts | | Director | | September 15, 2023 |
| | | | |
| | | | |
| /s/ Brett Ratner | | | | |
| Brett Ratner | | Director | | September 15, 2023 |
| | | | |
| | | | |
| /s/ Daniel Stein | | | | |
| Daniel Stein | | Director | | September 15, 2023 |
| | | |
| | | | |
| /s/ Elizabeth Xu | | | | |
| Elizabeth Xu | | Director | | September 15, 2023 |
| | | | |
| | | | |
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Calculation of Filing Fee Table
Form S-8
(Form Type)
Remark Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Security Type | | Security Class Title | | Fee Calculation Rule | | Amount Registered (1), (2) | | Proposed Maximum Offering Price (1) | | Maximum Aggregate Offering Price (1) | | Fee Rate | | Amount of Registration Fee | |
| | | | | | | | | | | | | | | |
| Equity | | Common stock, par value $0.001 per share | | 457(c) and 457(h)(3) | | 1,000,000 | | | $ | 0.55 | | | $ | 550,000.00 | | | $ | 0.0001102 | | | $ | 60.61 | | |
| | Total Offering Amounts | | | | 1,000,000 | | | | | $ | 550,000.00 | | | $ | 0.0001102 | | | $ | 60.61 | | |
| | Total Fee Offsets (4) | | | | | | | | | | | | — | | |
| | Net Fee Due | | | | | | | | | | | | $ | 60.61 | | |
(1)The securities to be registered include options and other rights to acquire the common stock of Remark Holdings, Inc. (the “Registrant”) issuable pursuant to the Registrant’s 2022 Incentive Plan (the “Plan”).
(2)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
(3)Calculated pursuant to Rule 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee. The price for these shares is based upon the average of the high and low sale prices of the Registrant’s common stock reported on the Nasdaq Capital Market on September 13, 2023.
(4)The Registrant does not have any fee offsets to claim.
BLANKROME
1271 Avenue of the Americas |New York, NY 10020
blankrome.com
September 15, 2023
The Board of Directors
Remark Holdings, Inc.
800 S. Commerce Street
Las Vegas, Nevada 89106
Re: Remark Holdings, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the “Registration Statement”) filed on the date hereof by Remark Holdings, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission with respect to the registration of up to an aggregate of 1,000,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), to be issued in connection with the Company’s 2022 Incentive Plan (collectively, the “2022 Incentive Plan”).
We have examined originals or certified copies of such corporate records of the Company and other certificates and documents of officials of the Company, public officials and others as we have deemed relevant or appropriate for purposes of this opinion letter. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all copies submitted to us as conformed and certified or reproduced copies. We have also assumed that all of the shares eligible for issuance under the Plan following the date hereof will be issued for not less than par value.
Based upon, and subject to, the foregoing, it is our opinion that the 1,000,000 Shares, when sold and issued in accordance with the provisions of the 2022 Incentive Plan and the Registration Statement and the related prospectus, will be validly issued, fully paid and non-assessable.
The opinions in this opinion letter are qualified in their entirety and subject to the following:
1.We express no opinion as to the laws of any jurisdiction other than the laws of the State of Delaware.
2.This opinion is given as of the date hereof and is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated. We assume herein no obligation, and hereby disclaim any obligation, to make any inquiry after the date hereof or to advise you of any future changes in the foregoing or of any facts or circumstances that may hereafter come to our attention.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations promulgated thereunder.
Very truly yours,
/s/ BLANK ROME
BLANK ROME LLP
Blank Rome LLP | blankrome.com
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in the foregoing Registration Statement on Form S-8 of Remark Holdings, Inc. of our report dated April 17, 2023, relating to their consolidated financial statements as of December 31, 2022 and 2021 and for the years then ended (which report includes an explanatory paragraph relating to substantial doubt about Remark Holdings, Inc.’s ability to continue as a going concern).
/s/ Weinberg & Company
Los Angeles, California
September 15, 2023
Remark (NASDAQ:MARK)
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