Securities Registration: Employee Benefit Plan (s-8)
09 Junho 2023 - 5:30PM
Edgar (US Regulatory)
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
TD
HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
139, Xinzhou 11th Street, Futian District
Shenzhen, Guangdong, PRC 518000 |
|
45-4077653 |
(State or other jurisdiction of
incorporation or organization) |
|
(Address of Principal Executive
Offices Including Zip Code) |
|
(I.R.S. Employer
Identification Number) |
TD HOLDINGS, INC. 2023 Stock Incentive Plan
(Full title of the plan)
Renmei Ouyang
139, Xinzhou 11th Street, Futian District
Shenzhen, Guangdong, PRC 518000
+86 (0755) 82792111
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Mark Yue Li, Esq.
MagStone Law, LLP
293 Eisenhower Parkway, Suite 135
Livingston, NJ 07039
Telephone: (347) 934-9333
Facsimile: (347) 989-6327
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. ☐
INTRODUCTION
This Registration Statement on Form S-8 (this
“Registration Statement”) is filed by TD Holdings, Inc., a Delaware corporation (the “Company” or the “Registrant”),
to register the offer and sale of up to 11,000,000 shares of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), which may be issued to eligible employees, officers, non-employee directors and other individual service providers of
the Company and its subsidiaries pursuant to TD Holdings, Inc. 2023 Stock Incentive Plan (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
| * | The document(s) containing the information specified in this
Part I will be sent or given to employees as specified by Rule 428(b)(1) (§230.428(b)(1)). Such documents need not be filed with
the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 (§230.424).
These documents and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this Form,
taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. See Rule 428(a)(1) (§230.428(a)(1)). |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents
by Reference.
The Securities and Exchange
Commission (the “SEC”) allows us to “incorporate by reference” information into this Registration Statement, which
means that we can disclose important information to you by referring to those documents. We hereby “incorporate by reference”
the documents listed below, which means that we are disclosing important information to you by referring you to those documents. The information
that the Company files later with the SEC will automatically update and in some cases supersede this information. Specifically, the Company
incorporates by reference the following documents or information filed with the SEC (other than, in each case, documents or information
deemed to have been furnished and not filed in accordance with SEC rules):
| ● | The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 10, 2023; |
| ● | The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2023 filed with the SEC on May 12, 2023; |
| ● | The description of the Common Stock, US$0.001
par value per share, contained in the Registrant’s registration statement on Form 8-A (File No. 001-36055) filed
with the Commission on August 12, 2013, including any amendment or report filed with the SEC for the purpose of updating such description. |
In addition, all documents
subsequently filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of
a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of
such documents (other than, in each case, those documents, or the portions of those documents or exhibits thereto, deemed to be furnished
and not filed in accordance with SEC rules).
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 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 will
any information furnished under Items 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and
Officers.
Article Seven of the Company’s
Certificate of Incorporation (the “Certificate”) limits the personal liability of directors to the Company or its stockholders
for monetary damages for breach of fiduciary duty. Article XI of the Company’s Bylaws (the “Bylaws”) requires the Company
to indemnify and hold harmless directors and officers against any expense, liability and loss that may be incurred by such individual
in connection with the carrying on of their duties with the Company. These provisions of the Certificate and Bylaws are collectively referred
to herein as the “Director Liability and Indemnification Provisions.”
The Director Liability and
Indemnification Provisions define and clarify the rights of individuals, including Company directors and officers, to indemnification
by the Company in the event of personal liability or expenses incurred by them as a result of litigation against them. These provisions
are consistent with Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”), which is designed, among other
things, to encourage qualified individuals to serve as directors of Delaware corporations by permitting Delaware corporations to include
in their certificates of incorporation a provision limiting or eliminating directors’ liability for monetary damages and with other
existing DGCL provisions permitting indemnification of certain individuals, including directors and officers. The limitations of liability
in the Director Liability and Indemnification Provisions may not affect claims arising under the federal securities laws.
In performing their duties,
directors of a Delaware corporation are obligated as fiduciaries to exercise their business judgment and act in what they reasonably determine
in good faith, after appropriate consideration, to be the best interests of the corporation and its shareholders. Decisions made on that
basis are protected by the so-called “business judgment rule.” The business judgment rule is designed to protect directors
from personal liability to the corporation or its shareholders when business decisions are subsequently challenged. However, the expense
of defending lawsuits, the frequency with which unwarranted litigation is brought against directors and the inevitable uncertainties with
respect to the outcome of applying the business judgment rule to particular facts and circumstances mean that, as a practical matter,
directors and officers of a corporation rely on indemnity from, and insurance procured by, the corporation they serve, as a financial
backstop in the event of such expenses or unforeseen liability. The Delaware legislature has recognized that adequate insurance and indemnity
provisions are often a condition of an individual’s willingness to serve as director of a Delaware corporation. The DGCL has for
some time specifically permitted corporations to provide indemnity and procure insurance for its directors and officers.
This description of the Director
Liability and Indemnification Provisions is intended as a summary only and is qualified in its entirety by reference to the Certificate
and the Bylaws, both of which have been filed with the SEC and are included as an exhibit to this Registration Statement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number |
|
Exhibit Description |
4.1 |
|
Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 of the draft registration statement on Form DRS filed on February 14, 2013 |
4.2 |
|
Bylaws of the Company, incorporated herein by reference to Exhibit 3.2 of the draft registration statement on Form DRS filed on February 14, 2013 |
4.3 |
|
Certificate of Amendment of the Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.5 of the registration statement on Form S-1/A filed on July 16, 2013 |
4.4 |
|
Certificate of Amendment to the Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed on January 16, 2019 |
4.5 |
|
Certificate of Amendment to the Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed on June 7, 2019 |
4.6 |
|
Certificate of Amendment to the Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed on March 12, 2020 |
4.7 |
|
Certificate of Amendment to Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed on April 21, 2021 |
4.8 |
|
Certificate of Amendment to Certificate of Incorporation of the Company, incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed on August 17, 2022 |
5.1* |
|
Legal Opinion of MagStone Law, LLP |
23.1* |
|
Consent of Audit Alliance LLP |
23.2* |
|
Consent of MagStone Law, LLP (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). |
24.1* |
|
Power of Attorney (included on signature page hereto) |
99.1 |
|
TD Holdings, Inc. 2023 Stock Incentive Plan |
107* |
|
Filing Fee Table |
Filed herewith.
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 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 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration 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 this Registration Statement or any material change to
such information in this 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 reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this 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; and
(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 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 SEC 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 ON THE NEXT PAGE]
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 Shenzhen City, Guangdong Province, PRC, on June 9, 2023.
|
By: |
/s/ Renmei Ouyang |
|
|
Renmei Ouyang |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Renmei Ouyang as his or her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further 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 SEC, granting unto said attorneys-in-fact and agents, and each of them, 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 or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or her substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated
below.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Renmei Ouyang |
|
Chief
Executive Officer and |
|
|
Renmei Ouyang |
|
Chairwoman
of the Board (principal executive officer) |
|
June 9, 2023 |
|
|
|
|
|
/s/
Tianshi (Stanley) Yang |
|
Chief
Financial Officer |
|
|
Tianshi (Stanley)
Yang |
|
(principal
financial officer and Principal Accounting Officer) |
|
June 9, 2023 |
|
|
|
|
|
/s/
Xiangjun Wang |
|
|
|
|
Xiangjun Wang |
|
Director |
|
June 9, 2023 |
|
|
|
|
|
/s/
Heung Ming (Henry) Wong |
|
|
|
|
Heung Ming (Henry)
Wong |
|
Director |
|
June 9, 2023 |
|
|
|
|
|
/s/
Donghong Xiong |
|
|
|
|
Donghong Xiong |
|
Director |
|
June 9, 2023 |
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