As filed with the Securities and Exchange Commission on April 21, 2021

 

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

TAKUNG ART CO., LTD

(Exact name of registrant as specified in its charter)

 

Delaware   26-4731758
State or other jurisdiction of   (I.R.S. Employer
incorporation or organization   Identification No.) 

 

Room 709 Tower 2, Admiralty Centre, 18 Harcourt Road,

Admiralty, Hong Kong 

   
(Address of Principal Executive Offices)   (Zip Code)

 

TAKUNG ART CO., LTD

2015 INCENTIVE STOCK PLAN

(Full title of the plan)

 

Zhihua Yang

Room 709 Tower 2, Admiralty Centre, 18 Harcourt Road,

Admiralty, Hong Kong 

(Name and address of agent for service)

 

+852 3158-0977

(Telephone number, including area code, of agent for service)

 

Copies to:

 

Elizabeth Fei Chen, Esq.

Pryor Cashman LLP

7 Times Square

New York, New York 10036

(212) 326-0199

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 ¨

 

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:

 

 

CALCULATION OF REGISTRATION FEE

 

          Proposed     Proposed        
          maximum     maximum        
          offering     aggregate     Amount of  
    Amount to be     price per     offering     registration  
Title of securities to be registered   registered (1)     share (2)     price     Fee  
Common Stock     500,000     $ 19.32     $ 9,660,200     $

1,053.93

 

 

  (1) The number of shares of common stock, par value $0.001 per share (“Common Stock”) of Takung Art Co., Ltd. (the “Registrant”) stated above consists of the aggregate number of shares which may be sold upon the exercise of options or issuance of stock-based awards which may hereafter be granted under Takung Art Co., Ltd. 2015 Incentive Stock Plan, as amended (the “Plan”). 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 of the Registrant that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the Registrant’s outstanding shares of Common Stock. We have previously registered a total of 1,037,000 shares of Common Stock for issuance under the Plan pursuant to Form S-8 Registration Statement No. 333-206623.

 

  (2) Estimated solely for the purpose of calculating the registration fee and computed in accordance with Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, upon the basis of the average of the high and low prices per share of the Registrant’s common stock as reported on the NYSE American on April 19, 2021, a date within five business days prior to the filing of this Registration Statement. 

 

 

 

 

 

EXPLANATORY NOTE

 

 

Pursuant to General Instruction E of Form S-8, this registration statement (this “Registration Statement”) has been prepared by Takung Art Co., Ltd. (the “Company,” or the “Registrant”) in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), solely to register an additional 500,000 shares of our common stock, par value $0.001 per share (“Common Stock”), issuable under our 2015 Incentive Stock Plan, as amended, which increase in shares was approved by our shareholders at our annual shareholders meeting on October 15, 2017.

 

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PART I

 

Item 1. Plan Information.

 

The documents containing the information specified in Item 1 will be sent or given to eligible participants in the Plan as specified by Rule 428(b)(1) of the Securities Act. Such documents are not required to be and are not filed with the Securities and Exchange Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These 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.

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

Upon written or oral request, a copy of 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) or other documents required to be delivered to eligible participants pursuant to Rule 428(b) are available without charge by contacting:

 

Takung Art Co., Ltd

Attention: Zhihua Yang, Chief Executive Officer

Room 709 Tower 2,

Admiralty Centre, 18 Harcourt Road,

Admiralty, Hong Kong

zhihuayang@takungae.com

 

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PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):

 

  (a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Commission on March 31, 2021;
  (b) The Registrant’s Current Reports on Form 8-K, filed with the Commission on March 5, 2021 and March 18, 2021; and
  (c) The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A, as filed with the Commission on August 26, 2015, including any amendment or report filed for the purpose of updating such description.

 

In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and 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; providedhowever, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. 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 subsequently filed document which also 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.

 

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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 authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents.

 

As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation includes provisions that eliminate the personal liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.

 

In addition, as permitted by Section 145 of the Delaware General Corporation Law, the amended and restated certificate of incorporation and bylaws of the Registrant provide that:

 

  · The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrant’s request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful.

 

  · The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.

 

  · The Registrant may be required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.

 

  · The Registrant may not be obligated pursuant to the amended and restated bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s board of directors or brought to enforce a right to indemnification.

 

  · The rights conferred in the amended and restated certificate of incorporation and bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees, and agents and to obtain insurance to indemnify such persons.

 

  · The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees, and agents.

 

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The Registrant is in the process of obtaining directors and officers insurance to insure such persons against certain liabilities.

 

These indemnification provisions may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

  

Item 8. Exhibits.

 

Exhibit No.   Description
4.1   Takung Art Co., Ltd 2015 Incentive Stock Plan (incorporate by reference from Exhibit 4.1 to the Registration Statement on Form S-8 filed with the SEC on August 27, 2015).
4.2   Amendment No. 1 to 2015 Incentive Stock Plan of Takung Art Co., Ltd (incorporate by reference from Annex A of the Definitive Proxy Statement on Schedule 14A filed by the Company with the SEC on September 5, 2017)
5.1   Opinion of Pryor Cashman LLP with respect to the legality of the common stock registered hereby.
23.1   Consent of Pryor Cashman LLP (contained in its opinion filed herewith in Exhibit 5.1)
23.2   Consent of WWC, P.C.
23.3   Consent of Marcum Bernstein & Pinchuk LLP

 

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 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 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 “Calculation of Registration Fee” table in the effective Registration Statement;

 

  (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 paragraphs (1)(i) and (1)(ii) of this section 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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.

 

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  (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.

 

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  (b) The undersigned Registrant hereby undertakes 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.

 

  (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 such 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 such 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 of 1933, as amended, 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 Hong Kong on April 21, 2021.

 

  TAKUNG ART CO., LTD  
     
  By: /s/ Zhihua Yang
    Zhihua Yang
    Chief Executive Officer

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the following person in the capacities and on the dates indicated has signed this Registration Statement below.

 

Signature   Title   Date
         
/s/ Zhihua Yang   Chief Executive Officer   April 21, 2021
Zhihua Yang   (Principal Executive Officer)    
         
/s/ Jing Wang   Chief Financial Officer   April 21, 2021
Jing Wang   (Principal Financial and Accounting Officer)    
         
/s/Xiaoyu Zhang   Director   April 21, 2021
Xiaoyu Zhang        
         
/s/ Jiangping (Gary) Xiao   Director   April 21, 2021
Jiangping (Gary) Xiao        
         
/s/ Li Lv   Director   April 21, 2021
Li Lv        

 

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