S-8

As filed with the Securities and Exchange Commission on February 14, 2022

Registration No. 333-   

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

Farmmi, Inc.

(Exact name of registrant as specified in its charter)

Cayman Islands	Not Applicable
(State or other jurisdiction of	(I.R.S. Employer
incorporation or organization)	Identification Number)

Fl 1, Building No. 1, 888 Tianning Street, Liandu District

Lishui, Zhejiang Province

People’s Republic of China 323000
Phone: 86-0578-82612876
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

2021 Share Incentive Plan
(Full title of the plan)

C T Corporation System

111 Eighth Avenue

New York, NY 10011

+1-212-894-8800

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

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ¨	Accelerated filer ¨
Non-accelerated filer x	Smaller reporting company ¨
	Emerging growth company x

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 13(a) of the Exchange Act. ¨

Copies to:

Anthony W. Basch, Esq.
Kaufman & Canoles, P.C.
Two James Center, 14^th Floor
1021 East Cary Street
Richmond, Virginia 23219

+1-804-771-5700

EXPLANATORY NOTE

Farmmi, Inc. (the “Registrant”) has prepared this Registration Statement in accordance with the requirements of Form S-8 under the Securities Act to register its ordinary shares, par value $0.001 per share, issuable pursuant to the Plan.  The Registrant’s stockholders approved the Plan on July 15, 2021.  This Registration Statement is being filed in order to register the Registrant’s ordinary shares that may be offered or sold to participants under the Plan, either directly or upon exercise of options or warrants issued under the Plan.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1. Plan Information.

The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act.  In accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and the instructions to Form S-8, such documents are not being filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

Item 2. Registration Information and Employee Plan Annual Information.

The documents containing the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act.  In accordance with the rules and regulations of the SEC and the instructions to Form S-8, such documents are not being filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.  Such documents, together with the documents incorporated by reference herein pursuant to Item 3 of Part II of this Registration Statement on Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act, and are available upon written request to: Secretary, Farmmi, Inc., Fl 1, Building No. 1, 888 Tianning Street, Liandu District, Lishui, Zhejiang Province, People’s Republic of China 323000. 86-0578-82612876.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated by reference herein:

(a) The Registrant’s annual report on Form 20-F for the year ended September 30, 2021, filed with the Commission on January 26, 2022;

(b) The Registrant’s  reports on Form 6-K, filed with the Commission on November 1, 2021, November 5, 2021, November 16, 2021, November 16, 2021, December 2, 2021, December 20, 2021, and January 27, 2022;

(c) The description of the ordinary shares, $0.001 par value per share, contained in the Registrant’s registration statement on Form 8-A filed with the SEC on February 12, 2018, and any amendment or report filed with the SEC for purposes of updating such description..

All documents that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to 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. 

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

Cayman Islands law does not limit the extent to which a company’s articles of association may provide for indemnification of directors and officers, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. The Registrant’s second amended and restated articles of association, adopted by its shareholders on July 22, 2021, provide that the Registrant may indemnify our directors, officers and liquidators against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with civil, criminal, administrative or investigative proceedings to which they are party or are threatened to be made a party by reason of their acting as our director, officer or liquidator. To be entitled to indemnification, these persons must have acted honestly and in good faith with a view to the best interest of the Registrant and, in the case of criminal proceedings, they must have had no reasonable cause to believe their conduct was unlawful. Such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission. These provisions will not limit the liability of directors under United States federal securities laws.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

The Exhibit Index is hereby incorporated by reference.

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 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 a 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 the registration statement or any material change to such information in the registration statement.

(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.

(b) That, for the purposes of determining 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 in 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 the 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 Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 Lishui, China, on February 14, 2022.

Farmmi, Inc.
By:	/s/ Yefang Zhang
	Name:	Yefang Zhang
	Title:	Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, severally and not jointly, Yefang Zhang, with full power to act alone, as his true and lawful attorney-in-fact, with the power of substitution, for and in such person’s 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, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact 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.

Signature	Title	Date
/s/ Yefang Zhang	Chief Executive Officer and Chairwoman (Principal Executive Officer)	February 14, 2022
Yefang Zhang
/s/ Wenhua Liu	Chief Financial Officer (Principal Financial and Accounting Officer)	February 14, 2022
Jun Zhou
/s/ Zhengyu Wang	Director	February 14, 2022
Zhengyu Wang
/s/ Hui Ruan	Director	February 14, 2022
Hui Ruan
/s/ Hongdao Qian	Director	February 14, 2022
Hongdao Qian
/s/ Qinyi Fu	Director	February 14, 2022
Qinyi Fu

EXHIBIT INDEX

 

Exhibit Number	Description
4.1	Second Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Annex A to Exhibit 99.1  to the registration statement on Form 6K filed on June 8, 2021)
4.2	Registrant’s Specimen Ordinary Share Certificate (incorporated herein by reference to Exhibit 4.1 to the registration statement on Form F-1, as amended (File No. 333-221569))
5.1*	Opinion of Campbells, regarding the legality of the ordinary shares being registered
23.1*	Consent of YCM CPA, Inc
23.2*	Consent of Friedman LLP
23.3*	Consent of Campbells (included in Exhibit 5.1)
24.1*	Powers of Attorney (included on signature page hereto)
99.1	2021 Share Incentive Plan (incorporated here in by reference to Annex B to Exhibit 99.1 to the registration statement on Form 6K filed on June 8, 2021)
107	Calculation of Filing Fee Tables

* Filed herewith.

EX-5.1

Exhibit 5.1 

 

	Campbells LLP Floor 4, Willow House, Cricket Square Grand Cayman KY1-9010 Cayman Islands
BY EMAIL Farmmi, Inc. No. 307, Tianning Industrial Area Lishui, Zhejiang Province People’s Republic of China 323000	D +1 345 914 5844 T +1 345 949 2648 F +1 345 949 8613 E drussell@campbellslegal.com campbellslegal.com Our Ref: RBS/DPM/16074-30576 Your Ref: CAYMAN | BVI | HONG KONG

14 February 2022

Dear Sirs

Farmmi, Inc. (the “Company”)

We have acted as Cayman Islands legal counsel to the Company in connection with a registration statement on Form S-8 to be filed with the Securities and Exchange Commission (the "Commission") on 14 February 2022 (the "Registration Statement", which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto) relating to the registration under the United States Securities Act of 1933, as amended, (the "Securities Act") of 10,000,000 ordinary shares, par value US$0.001 per share (the "Shares"), issuable by the Company pursuant to the 2021 Stock Incentive Plan (the "Plan") filed as Exhibit 99.1 to the Registration Statement.

In connection with rendering our opinion as set forth below, we have reviewed and examined the following:

1 Copy of the Memorandum of Association and Articles of Association of the Company as adopted by the Company by a special resolution of the shareholders on 22 July 2022 (the "Memorandum and Articles").

2 Register of Directors of the Company.

3 Copies of the Minutes of AGM dated July 22, 2021, and the written resolutions of the Board of Directors of the Company dated 6 June 2021 and 10 February 2022 (together, the “Resolutions”).

4 An electronic copy of the Registration Statement as provided to us and as filed with the Commission.

5 A copy of the Plan.

The Registration Statement (and the exhibits thereto) and the Plan are referred to below as the “Documents.”

Based upon, and subject to, the assumptions and qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:

1. The Shares to be issued by the Company have been duly and validly authorised.

2. When issued and paid for in accordance with the terms of the Plan and in accordance with the Resolutions, and appropriate entries are made in the register of members (shareholders) of the Company, the Shares will be validly issued, fully paid and non-assessable.

In this opinion letter, the phrase "non-assessable" means, with respect to the issuance of Shares, that a shareholder shall not, in respect of the relevant Shares, have any obligation to make further contributions to the Company's assets (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil).

These opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations.

In giving this opinion we have assumed, without independent verification:

(a) the genuineness of all signatures and seals, the authenticity of all documents submitted to us as originals, the conformity of all copy documents or the forms of documents provided to us to their originals or, as the case may be, to the final form of the originals and that any markings showing revisions or amendments to documents are correct and complete;

(b) that the copies produced to us of Resolutions are true copies and correctly record the proceedings of such meetings and/or the subject matter which they propose to record and that all factual statements therein contained are true and correct and that any meetings referred to in such copies were duly convened and held and that all resolutions set out in such copy minutes or resolutions were duly passed and are in full force and effect and that all factual statements made in such resolutions are true and correct (and continue to be true and correct);

(c) the Memorandum and Articles remain in full force and effect and are unamended and the Register of Directors of the Company is accurate as at the date hereof;

(d) there is nothing contained in the minute book or corporate records of the Company (which we have not inspected) which would or might affect the opinions set out above;

2

(e) the accuracy of all representations, warranties and covenants as to factual matters made by the parties to the Documents;

(f) upon the issue of any Shares, the Company will receive consideration which shall be equal to at least the par value of such Shares; and

(g) that there is no contractual or other prohibition (other than as may arise by virtue of the laws of the Cayman Islands) binding on the Company or on any other party prohibiting it from entering into and performing its obligations pursuant to the Documents.

The foregoing opinion is subject to the following reservations and qualifications:

1 In the event that the Documents are executed in or brought within the jurisdiction of the Cayman Islands (e.g., for the purposes of enforcement or obtaining payment), stamp duty will be payable on each of the originals thereof and any counterparts thereof of a nominal amount.

2 Under the Companies Act (2022 Revision) of the Cayman Islands, the register of members of a Cayman Islands company is by statute regarded as prima facie evidence of any matters which the Companies Act (2022 Revision) directs or authorises to be inserted therein. A third party interest in the shares in question would not appear. An entry in the register of members may yield to a court order for rectification (for example, in the event of fraud or manifest error).

3 We neither express nor imply any opinion as to any representation or warranty given by the Company in the Documents as to its capability (financial or otherwise) to undertake the obligations assumed by it under the Documents.

This opinion letter is to and for the benefit solely of the addressee and may not be relied upon by any other person for any purpose.

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any amendments thereto. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under section 7 of the U.S. Securities Act of 1933, as amended, or the Rules and Regulations of the Commission thereunder with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.

Yours faithfully

 

Campbells LLP

3

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 of our report dated January 26, 2022, relating to the consolidated balance sheet of Farmmi, Inc. as of September 30, 2021, and the related consolidated statement of operations and comprehensive income (loss), changes in stockholders’ equity, and cash flows for the year ended September 30, 2021, which appear in such Registration Statements. We also consent to the reference to our firm under the heading “Experts” in such Registration Statements.

/s/ YCM CPA, Inc.

Irvine, California

February 14, 2022

EX-23.2

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (the “Registration Statement”) of our report dated January 29, 2021, which excluded the retroactive effects of the discontinued operations of Zhejiang Forest Food Co., Ltd., relating to the consolidated balance sheet of Farmmi, Inc. as of September 30, 2020, and the related consolidated statements of operations and comprehensive income (loss), changes in stockholders’ equity, and cash flows for each of the years in the two-year period ended September 30, 2020, as included in the Company’s 2021 Form 20-F annual report filed on January 26, 2022. We also consent to the reference to our firm under the heading “Experts” in such Registration Statement.

/s/ Friedman LLP

New York, New York

February 14, 2022

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

S-8

(Form Type)

Farmmi, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)(2)	Proposed Maximum Offering Price Per Unit(3)	Maximum Aggregate Offering Price(4)	Fee Rate	Amount of Registration Fee(4)
Equity	Ordinary Shares	Rule 457(h) and 457(c)	10,000,000	$0.20	$2,000,000		185.40
Total Offering Amounts					$2,000,000		185.40
Total Fee Offsets							0.00
Net Fee Due							185.40(5)

(1)	Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement includes an indeterminate number of additional shares which may be issuable in accordance with the 2021 Share Incentive Plan (the “Plan”) to prevent dilution from stock splits, stock dividends or similar transactions.
(2)	The 10,000,000 shares registered hereby represent ordinary shares issuable pursuant to the Plan, either directly or upon exercise of options or warrants issued under the Plan. The Registrant is registering only 10,000,000 of the 40,000,000 shares authorized under the Plan.
(3)	Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) and 457(c) under the Securities Act based on the average of the high and low prices reported for the Registrant’s ordinary shares on the NASDAQ Capital Market on February 9, 2022, which were $0.21 and $0.19, respectively.
(4)	Determined in accordance with Rule 457(h).
(5)	Paid herewith.