Form: S-8

Initial registration statement for securities to be offered to employees pursuant to employee benefit plans

April 8, 2024

 

As filed with the Securities and Exchange Commission on April 8, 2024

Registration No. 333-               

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

 

GRYPHON DIGITAL MINING, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   83-2242651

(State or other jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

 

1180 N. Town Center Drive, Suite 100

Las Vegas, NV 89144

(877) 646-3374

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

2024 Omnibus Incentive Plan

(Full title of the plan)

 

Robby Chang

Chief Executive Officer, President and Director

Gryphon Digital Mining, Inc.

1180 North Town Center Drive, Suite 100

Las Vegas, NC 89144

(877) 646-3374

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Please send copies of all communications to:

Barry I. Grossman, Esq.

Scott M. Miller, Esq.

Adam Berkaw, Esq.

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas

New York, New York 10105-0302

(212) 370-1300

 

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 Exchange Act.

 

 

 

 

 

 

EXPLANATORY NOTE

 

Gryphon Digital Mining, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission (the “Commission”) to register 5,810,033 shares of common stock, par value $0.0001 per share (“Common Stock”) available for issuance under the Registrant’s 2024 Omnibus Incentive Plan (the “2024 OIP”).

 

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information called for by Part I of Form S-8 is omitted from this Registration Statement and has been or will be sent or given to participating service providers in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”) and the instructions to Form S-8. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act.

 

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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 Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated herein by reference:

 

  (a) the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on April 1, 2024 (File No. 001-39096);

 

  (b) the audited annual financial statements of Ivy Crypto, Inc. (formerly Gryphon Digital Mining, Inc.) as at and for the years ended December 31, 2023 and 2022 and the report of the independent registered public accounting firm thereon contained in such audited annual financial statements filed with the Registrant’s Current Report on Form 8-K, as filed with the Commission on April 1, 2024 (File No. 001-39096);

 

  (c) the unaudited pro forma condensed consolidated financial statements of Akerna Corp. and Gryphon Digital Mining, Inc. as at December 31, 2023 filed with the Registrant’s Current Report on Form 8-K, as filed with the Commission on April 1, 2024 (File No. 001-39096);

 

  (d) all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred to in (a) above; and

 

(e) the description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-K12B (File No. 001-39096) filed with Commission on October 21, 2019 under Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description (including Exhibit 4.1 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on April 1, 2024).

 

All documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any current report on Form 8-K) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein will 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 by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.

 

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Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law (“DGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to its directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the DGCL are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.

 

The Registrant’s Amended and Restated Certificate of Incorporation, as amended (the “Amended and Restated COI”) provides that the Corporation, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. The Amended and Restated COI also provides for the payment of expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled to indemnification under the Amended and Restated COI, which shall be paid by the Registrant in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Registrant as provided under the provisions of the Amended and Restated COI.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit
Number
  Description
4.1*   2024 Omnibus Incentive Plan
5.1*   Opinion of Ellenoff Grossman & Schole LLP
23.1*   Consent of Marcum LLP
23.2*   Consent of RBSM LLP
23.3*   Consent of Ellenoff Grossman & Schole LLP (contained in Exhibit 5.1)
24.1*   Power of Attorney (contained on signature page hereto).
107*   Filing Fee Table.

 

* Filed herewith

 

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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;

 

(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 the 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 a 20 percent change in the maximum aggregate offering price set forth in the “Filing 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 clauses (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those clauses 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, 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) 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 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 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 hereby, 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.

 

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SIGNATURES

 

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 Las Vegas, State of Nevada, on this eighth day of April, 2024.

 

  GRYPHON DIGITAL MINING, INC.
   
  By: /s/ Robby Chang
    Robby Chang
    Chief Executive Officer, President and Director

 

KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below hereby constitutes and appoints Robby Chang as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her 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 sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 increasing the number of shares for which registration is sought, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, making such changes in this registration statement as such attorney-in-fact and agent so acting deem appropriate, with the SEC, 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 with respect to the offering of securities contemplated by this registration statement, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his, her or their substitute or substitutes, may lawfully do or cause to be done or 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 and on the dates indicated.

 

Signature   Title   Date
         
/s/ Robby Chang   Chief Executive Officer, President and Director   April 8, 2024
Robby Chang   (Principal Executive Officer)    
         
/s/ Simeon Salzman   Chief Financial Officer   April 8, 2024
Simeon Salzman   (Principal Financial Officer and
Principal Accounting Officer)
   
         
/s/ Brittany Kaiser   Chairperson of the Board of Directors   April 8, 2024
Brittany Kaiser        
         
/s/ Heather Cox   Director   April 8, 2024
Heather Cox        
         
/s/ Steve Gutterman   Director   April 8, 2024
Steve Gutterman        
         
/s/ Jessica Billingsley   Director   April 8, 2024
Jessica Billingsley        

 

 

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