As
filed with the Securities and Exchange Commission on June 16, 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
Professional
Diversity Network, Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
80-0900177 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
| |
|
|
55
East Monroe Street, Suite 2120
Chicago,
Illinois |
|
60603 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
Professional
Diversity Network, Inc. 2023 Equity Compensation Plan
(Full
title of the plan)
Xin
(Adam) He
Chief
Executive Officer
55
East Monroe Street, Suite 2120
Chicago,
Illinios 60603
(Name
and address of agent for service)
(312)
614-0950
(Telephone
number, including area code, of agent for service)
With
Copy to:
Locke
Lord LLP
111
South Wacker Drive, Suite 4100
Chicago,
Illinois 60606
(312)
443-0700
Attention:
Charles Wu
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 |
|
☒ |
Non-accelerated
filer |
|
☐ |
Emerging
growth company |
| |
|
|
|
|
|
|
|
| ☐ |
Accelerated
filer |
|
☒ |
Smaller
reporting 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
This
Registration Statement on Form S-8 is being filed for purpose of registering 750,000 shares of common stock, $0.01 par value (the “Common
Stock”) of Professional Diversity Network, Inc. (the “Company”), that may be issued to eligible employees, officers,
directors or consultants pursuant to the Professional Diversity Network, Inc. 2023 Equity Compensation Plan (the “2023 Plan”).
Outstanding awards granted under the Professional Diversity Network, Inc. 2013 Equity Compensation Plan (the “2013 Plan”)
will remain in effect and be administered thereunder, but no new awards may be granted under the 2013 Plan.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
The
document(s) containing the employee benefit plan information required by Item 1 of Form S-8 and the statement of availability of registrant
information and any other information required by Item 2 of Form S-8 will be sent or given to participants as specified by Rule 428 under
the Securities Act. In accordance with Rule 428 and the requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. The Registrant will maintain a file of such documents in accordance
with the provisions of Rule 428. Upon request, the Registrant will furnish to the Commission or its staff a copy of any or all of the
documents included in such file.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
| Item
3. | Incorporation
of Documents by Reference |
The
following documents filed by the Company with the SEC are incorporated herein by reference into this Registration Statement:
| |
1. |
The
Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2022, as filed on March 31, 2023, including portions of our Definitive Proxy Statement
on Schedule 14A filed with the SEC
on May 1, 2023, incorporated by reference therein; |
| |
|
|
| |
2. |
The
Company’s Quarterly Report on Form
10-Q for the fiscal quarter ended March 31, 2023 filed with the SEC on May 15, 2023; |
| |
|
|
| |
3. |
The
Company’s Current Reports on Form 8-K filed with the SEC on January
4, 2023, January 11, 2023,
January 23, 2023, and March
15, 2023; and |
| |
|
|
| |
4. |
The
description of the Company’s Common Stock, contained in Exhibit
4.2 to the Company’s Registration Statement on Form S-3 filed with the SEC on October 18, 2021 (File No. 333-260316). |
All
other reports and documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
filing 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 a part hereof from the date of filing such documents; provided that, the Company is not incorporating any documents
or information that is deemed furnished and not filed in accordance with the rules and regulations promulgated by the SEC.
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 in any subsequently filed document that also is
or 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 Names Experts and Counsel. |
Not
applicable.
| Item
6. | Indemnification
of Directors and Officers. |
Section
145(a) of the DGCL provides, in general, that a corporation has the power to 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 corporation), because the person is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise.
Such indemnity may be 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 corporation and if, with respect to any criminal
action or proceeding, the person did not have reasonable cause to believe the person’s conduct was unlawful.
Section
145(b) of the DGCL provides, in general, that a corporation has the power to 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 corporation to procure a judgment
in its favor because the person is or was a director, officer, employee or agent of the corporation or is or was serving at the request
of the corporation as a director, officer, employee or agent of any other enterprise, against any 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 corporation,
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 corporation unless and only to the extent that the Court of Chancery 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.
Section
145(g) of the DGCL provides, in general, that a corporation has the power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director,
officer, employee or agent of any other enterprise, against any liability asserted against the person in any such capacity, or arising
out of the person’s status as such, regardless of whether the corporation would have the power to indemnify the person against
such liability under the provisions of Section 145 of the DGCL.
Article
VII of the Company’s certificate of incorporation and Article VIII of the Company’s bylaws provide for indemnification to
the fullest extent authorized by the DGCL for any person who is or was a party or threatened to be made a party to any threatened, pending
or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was serving
as a director or officer of the Company or while a director or officer of the Company is or was serving at the request of the Company
as a director, officer, employee or agent of any other enterprise. Such indemnification is provided only if the director or officer acted
in good faith and in a manner that the director or officer reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal proceeding, had no reasonable cause to believe that the conduct was unlawful.
As
permitted under Section 102(b)(7) of the DGCL, Article VI of the Company’s certificate of incorporation further provides that,
to the fullest extent permitted by the DGCL, no director shall be personally liable to the Company or its stockholders for monetary damages
for any breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.
The
foregoing is only a general summary of certain aspects of the DGCL, the Company’s certificate of incorporation and the Company’s
bylaws dealing with indemnification and exculpation of directors and officers, and does not purport to be complete. It is qualified in
its entirety by reference to the detailed provisions of Section 145 of the DGCL, Section 102(b)(7) of the DGCL, Articles VI and VII of
the Company’s certificate of incorporation and Article VIII of the bylaws of the Company.
Pursuant
to the Company’s certificate of incorporation and bylaws, the Company may maintain a directors’ and officers’ insurance
policy which insures the directors and officers of the Company against liability asserted against such persons in such capacity whether
or not the Company would have the power to indemnify such person against such liability under the DGCL.
The
following exhibits are filed herewith:
(a)
The Company 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 this 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 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 this Registration Statement
or any material change to such information in this Registration Statement; |
provided,
however, that clauses (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by
those clauses is contained in reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference into 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 this 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
Pursuant
to the requirements of the Securities Act of 1933, the Company 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 Chicago, Illinois, on June 16 2023.
| |
Professional
Diversity Network, Inc. |
| |
|
|
| |
By: |
/s/
Xin (Adam) He |
| |
Name: |
Xin
(Adam) He |
| |
Title: |
Chief
Executive Officer (Principal Executive Officer) |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints each of Xin (Adam) He and Larry
S. Aichler, or either of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
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 file the same and all exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting said attorney-in-fact and agent, and either 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 either
of them, or his or her or their 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 dates indicated.
| /s/
Xin (Adam) He |
|
Chief
Executive Officer |
|
June
16 2023 |
| Xin
(Adam) He |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Larry S. Aichler |
|
Chief
Financial Officer |
|
June
16 2023 |
| Larry
S. Aichler |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Hao (Howard) Zhang |
|
Director,
Chair of the Board |
|
June
16 2023 |
| Hao
(Howard) Zhang |
|
|
|
|
| |
|
|
|
|
| /s/
Michael D. Belsky |
|
Director |
|
June
16 2023 |
| Michael
D. Belsky |
|
|
|
|
| |
|
|
|
|
| /s/
Scott Liu |
|
Director |
|
June
16 2023 |
| Scott
Liu |
|
|
|
|
| |
|
|
|
|
| /s/
Chris Renn |
|
Director |
|
June
16 2023 |
| Chris
Renn |
|
|
|
|
| |
|
|
|
|
| /s/
Courtney Shea |
|
Director |
|
June
16 2023 |
| Courtney
Shea |
|
|
|
|
