Securities Registration: Employee Benefit Plan (s-8)
March 14 2023 - 4:06PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on March 14, 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
HEARTCORE
ENTERPRISES, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
87-0913420 |
(State
or other jurisdiction
of
incorporation or organization) |
|
(I.R.S.
Employer
Identification
Number) |
HeartCore
Enterprises, Inc.
1-2-33,
Higashigotanda, Shinagawa-ku, Tokyo, Japan
(Address
of principal executive offices, including zip code)
2021
Equity Incentive Plan
(Full
title of the plan)
Sumitaka
Yamamoto
Chief
Executive Officer
c/o
HeartCore Enterprises, Inc.
1-2-33,
Higashigotanda, Shinagawa-ku, Tokyo, Japan
+81-3-6409-6966
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Laura
Anthony, Esq.
Anthony
L.G., PLLC
625
N. Flagler Drive, Suite 600
West
Palm Beach, FL 33401
(561)
514-0936
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. ☐
PART
I
INFORMATION
REQUIRED IN THE PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement 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 of Form S-8 will be delivered to the participants in the equity benefit
plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART
II
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
HeartCore
Enterprises, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents
previously filed with the Securities and Exchange Commission (the “Commission”):
|
1. |
The Registrant’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on March 31, 2022; and |
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2. |
All other reports of the
Registrant filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
since March 31, 2022 (other than the portions of these documents not deemed to be filed); and |
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3. |
The description of the
Registrant’s securities contained in the Registrant’s Form 8-A filed with the Commission on February 8, 2022 and in the
Registrant’s Registration Statement on Form S-1 (File No. 333-261984), initially filed with the Commission on January 3, 2022
and declared effective on February 9, 2022, including any amendments or reports filed for the purpose of updating such description. |
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 to this Registration Statement that indicates that all securities offered
have been sold or that 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; provided, however, 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.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
Registrant’s certificate of incorporation provides that its officers and directors will be indemnified by the Registrant to the
fullest extent authorized by Delaware law, as it now exists or may in the future be amended. In addition, the Registrant’s certificate
of incorporation provides that the Registrant’s directors will not be personally liable for monetary damages to the Registrant
for breaches of their fiduciary duty as directors, except to the extent such exemption from liability or limitation thereof is not permitted
by the General Corporation Law of the State of Delaware.
On
February 9, 2022, each of Takeshi Omoto, Yoshitomo Yamano, Yuki Tan and Yuta Katai entered into an indemnification agreement with the
Registrant. Previously, Ferdinand Groenewald entered into an indemnification agreement with the Registrant. Each indemnification agreement
provides, among other things, for indemnification to the fullest extent permitted by law and the Registrant’s certificate of incorporation
and bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification
agreements provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to the Registrant if it is
found that such indemnitee is not entitled to such indemnification under applicable law and the Registrant’s certificate of incorporation
and bylaws.
The
Registrant’s certificate of incorporation also permits the Registrant to maintain insurance on behalf of any officer, director
or employee for any liability arising out of his or her actions, regardless of whether Delaware law would permit such indemnification.
The Registrant has purchased a policy of directors’ and officers’ liability insurance that insures officers and directors
against the cost of defense, settlement or payment of a judgment in some circumstances and insures the Registrant against its obligations
to indemnify its officers and directors.
These
provisions may discourage stockholders from bringing a lawsuit against the Registrant’s directors for breach of their fiduciary
duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against officers and directors, even
though such an action, if successful, might otherwise benefit the Registrant and its stockholders. Furthermore, a stockholder’s
investment may be adversely affected to the extent the Registrant pays the costs of settlement and damage awards against officers and
directors pursuant to these indemnification provisions.
The
Registrant believes that these provisions and the insurance are necessary to attract and retain talented and experienced officers and
directors.
Any
repeal or amendment of provisions of the Registrant’s certificate of incorporation affecting indemnification rights, whether by
the Registrant’s board of directors, stockholders or by changes in applicable law, or the adoption of any other provisions inconsistent
therewith, will (unless otherwise required by law) be prospective only, except to the extent such amendment or change in law permits
the Registrant to provide broader indemnification rights on a retroactive basis, and will not in any way diminish or adversely affect
any right or protection existing thereunder with respect to any act or omission occurring prior to such repeal or amendment or adoption
of such inconsistent provision.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers and
controlling persons pursuant to the provisions described above, 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 Registrant’s payment of expenses incurred or
paid by the Registrant’s director, officer or controlling person 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.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
*
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 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 a 20 percent 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 the 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 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 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.
(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, 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, 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 the City of Tokyo, Japan, on March 14, 2023.
|
HEARTCORE ENTERPRISES, INC. |
|
|
|
By: |
/s/
Sumitaka Yamamoto |
|
|
Sumitaka Yamamoto |
|
|
Chief Executive Officer and President |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sumitaka Yamamoto as his true
and lawful attorney-in-fact and agent with full power of substitution, for him and in their name, place and stead, in any and all capacities,
to sign this Registration Statement on Form S-8 and any and all amendments thereto (including post-effective amendments), 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 connection therewith, as fully to all intents and purposes as he 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, this Registration Statement has been signed by the following persons in the capacities
and on the date indicated.
Signature |
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Title |
|
Date |
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|
/s/
Sumitaka Yamamoto |
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Chairman of the Board,
Chief Executive Officer and President |
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March
14, 2023 |
Sumitaka
Yamamoto |
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(principal executive officer) |
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/s/
Qizhi Gao |
|
Chief Financial Officer
(principal financial officer |
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March
14, 2023 |
Qizhi Gao |
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and principal accounting officer) |
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/s/
Ferdinand Groenewald |
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Director |
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March
14, 2023 |
Ferdinand Groenewald |
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/s/
Kimio Hosaka |
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Director |
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March
14, 2023 |
Kimio Hosaka |
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/s/
Yuta Katai |
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Director |
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March
14, 2023 |
Yuta Katai |
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/s/
Takeshi Omoto |
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Director |
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March
14, 2023 |
Takeshi Omoto |
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/s/
Prakash Sadasivam |
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Director |
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March
14, 2023 |
Prakash Sadasivam |
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/s/
Yuki Tan |
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Director |
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March
14, 2023 |
Yuki Tan |
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/s/
Yoshitomo Yamano |
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Director |
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March
14, 2023 |
Yoshitomo Yamano |
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