S-8 1 d220116ds8.htm FORM S-8 Form S-8

As filed with the Securities and Exchange Commission on October 18, 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

 

 

Missfresh Limited

(Exact name of registrant as specified in its charter)

 

 

 

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

3rd Floor, Block A, Vanke Times Center

No. 9 Wangjing Street

Chaoyang District, Bejing 100016

The People’s Republic of China

(Address of Principal Executive Offices and Zip Code)

 

 

Amended and Restated 2017 Equity Incentive Plan

(Full title of the plan)

Cogency Global Inc.

122 East 42nd Street, 18th Floor

New York, NY 10168

+1 (800) 221-0102

(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, 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.  ☐

Copies to:

 

Xi (Catherine) Chen

Co-Chief Financial Officer

Missfresh Limited

3rd Floor, Block A, Vanke Times Center

No. 9 Wangjing Street, Chaoyang District

Beijing 100016

The People’s Republic of China

+86 10 5266 5273

 

Z. Julie Gao, Esq.

Shu Du, Esq.

Skadden, Arps, Slate, Meagher & Flom LLP

c/o 42/F, Edinburgh Tower, The Landmark

15 Queen’s Road Central

Hong Kong

+852 3740 4700

 

 


CALCULATION OF REGISTRATION FEE

 

 

Title of securities to
be registered(1)
  Amount to be
registered(2)
  Proposed
maximum
offering price
per share
  Proposed
maximum
aggregate
offering price
  Amount of
registration fee

Class B ordinary shares, par value US$0.0001 per share (granted options)

  26,695,679 (3)   $0.1000 (3)   $2,669,567.90   $247.47

Class B ordinary shares, par value US$0.0001 per share (granted restricted share units)

  3,164,430 (4)   $1.2767 (4)   $4,040,027.78   $374.51

Class B ordinary shares, par value US$0.0001 per share (reserved)

  3,444,318 (5)   $1.2767 (5)   $4,397,360.79   $407.64

Total

  33,304,427 (6)     $11,106,956.47   $1,029.61

 

 

 

(1)

These shares may be represented by the Registrant’s American Depositary Shares, or ADSs, each of which represents three Class B ordinary shares of the Registrant, par value US$0.0001 per share. The Registrant’s ADSs issuable upon deposit of the Class B ordinary shares registered hereby have been registered under a separate registration statement on Form F-6 (333-257296).

(2)

Represents the Class B ordinary shares issuable upon vesting or exercise of awards granted under the Amended and Restated 2017 Equity Incentive Plan of the Registrant, as amended and restated from time to time (the “2017 Plan”), as well as the Class B ordinary shares reserved for future awards under the 2017 Plan. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares which may be offered and issued to prevent dilution from share splits, share dividends, or similar transactions as provided in the 2017 Plan. Any Class B ordinary shares covered by an award granted under the 2017 Plan (or portion of an award) that terminates, expires, or lapses for any reason will be deemed not to have been issued for purposes of determining the maximum aggregate number of Class B ordinary shares that may be issued under the 2017 Plan.

(3)

The amount to be registered represents Class B ordinary shares issuable upon exercise of outstanding options granted under the 2017 Plan and the corresponding proposed maximum offering price per share represents weighted average exercise price of these outstanding options, which is estimated solely for the purposes of calculating the registration fee under Rule 457(h) under the Securities Act.

(4)

The amount to be registered represents restricted share units or other awards granted under the 2017 Plan and the corresponding proposed maximum offering price per share, which is estimated solely for the purposes of calculating the registration fee under Rule 457(c) and Rule 457(h) under the Securities Act, is based on the average of the high and low prices for the Registrant’s ADSs as quoted on the Nasdaq Stock Market on October 15, 2021, adjusted for ADS to Class B ordinary share ratio.

(5)

These Class B ordinary shares are reserved for future award grants under the 2017 Plan. The number of Class B ordinary shares available for issuance under the 2017 Plan has been estimated for the purposes of calculating the amount of the registration fee. The proposed maximum offering price per share, which is estimated solely for the purposes of calculating the registration fee under Rule 457(c) and Rule 457(h) under the Securities Act, is based on the average of the high and low prices for the Registrant’s ADSs as quoted on the Nasdaq Stock Market on October 15, 2021, adjusted for ADS to Class B ordinary share ratio.

(6)

Any Class B ordinary shares covered by an award granted under the 2017 Plan (or portion of an award) that terminates, expires or lapses for any reason will be deemed not to have been issued for purposes of determining the maximum aggregate number of Class B ordinary shares that may be issued under the 2017 Plan.

 

 

 


PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.

Plan Information*

 

Item 2.

Registrant Information and Employee Plan Annual Information*

 

*

Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8. The documents containing information specified in this Part I will be separately provided to the participants covered by the 2017 Plan, as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference

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

 

  (a)

The Registrant’s prospectus dated June 24, 2021 filed with the Commission on June 28, 2021 (File No. 333-256903) pursuant to Rule 424(b)(4) under the Securities Act; and

 

  (b)

The description of the Registrant’s Class B ordinary shares set forth under “Description of Share Capital” in the Registrant’s registration statement on Form F-1 (File No. 333-256903), initially filed with the Commission on June 8, 2021, including any amendment, supplement and report subsequently filed for the purpose of updating that description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement 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. Any statement in a document incorporated or deemed to be incorporated by reference in this registration statement will be deemed to be modified or superseded to the extent that a statement contained in this registration statement or in any other later filed document that also is or is deemed to be incorporated by reference modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as so modified or superseded, to be 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

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 ninth amended and restated memorandum and articles of association, adopted by its shareholders on June 8, 2021 and effective immediately prior to the completion of the initial public offering of the Registrant’s ADSs representing its Class B ordinary shares, provides that the Registrant shall indemnify its directors and officers against actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such persons in their capacity as such, except through their own dishonesty, willful default or fraud, in or about the conduct of the Registrant’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of their duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such persons in defending (whether successfully or otherwise) any civil proceedings concerning the Registrant or its affairs in any court whether in the Cayman Islands or elsewhere.

 

3


Pursuant to the indemnification agreement, the form of which was filed as Exhibit 10.2 to the Registrant’s registration statement on Form F-1, as amended (File No. 333-256903), the Registrant has agreed to indemnify its directors and executive officers against certain liabilities and expenses incurred by such persons in connection with claims made by reason of their being directors or officers of the Registrant.

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 Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

The Registrant also maintains a directors and officers liability insurance policy for its directors and officers.

 

Item 7.

Exemption from Registration Claimed

Not applicable.

 

Item 8.

Exhibits

See the Index to Exhibits attached hereto.

 

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 this 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 that information in the registration statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 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.

 

4


(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 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 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.

 

5


EXHIBIT INDEX

 

Exhibit
Number
  

Description

 4.1    Ninth Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registrant’s registration statement on Form F-1 filed with the Securities and Exchange Commission on June 8, 2021, as amended (File No. 333-256903))
 4.2    Registrant’s Specimen Certificate for Class  B Ordinary Shares (incorporated herein by reference to Exhibit 4.2 to the Registrant’s registration statement on Form F-1/A filed with the Securities and Exchange Commission on June  22, 2021 (File No. 333-256903))
 4.3*    Deposit Agreement, among the Registrant, JPMorgan Chase Bank, N.A., as depositary, and holders and beneficial owners of the American Depositary Receipts issued thereunder dated June 24, 2021
 4.4*    Registrant’s Specimen American Depositary Receipt (included in Exhibit 4.3)
 5.1*    Opinion of Maples and Calder (Hong Kong) LLP, Cayman Islands counsel to the Registrant, regarding the legality of the Class B ordinary shares being registered
10.1    Amended and Restated 2017 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s registration statement on Form F-1 filed with the Securities and Exchange Commission on June 8, 2021, as amended (File No. 333-256903))
23.1*    Consent of PricewaterhouseCoopers Zhong Tian LLP, an independent registered public accounting firm
23.2*    Consent of Maples and Calder (Hong Kong) LLP (included in Exhibit 5.1)
24.1*    Power of Attorney (included on signature page hereto)

 

*

Filed herewith.


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 Beijing, China, on October 18, 2021.

 

Missfresh Limited
By:   /s/ Zheng Xu
  Name:   Zheng Xu
  Title:   Chairman of the Board of Directors and 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, each of Zheng Xu and Jun Wang, with full power to act alone, as his or her 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 or she 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, as amended, this registration statement has been signed by the following persons in the capacities on October 18, 2021.

 

Signature

  

Title

/s/ Zheng Xu

Zheng Xu

  

Chairman of the Board of Directors and Chief Executive Officer
(Principal Executive Officer)

/s/ Jun Wang

Jun Wang

  

Director and Co-Chief Financial Officer

(Principal Financial and Accounting Officer)

/s/ Yuan Sun

Yuan Sun

  

Director

/s/ Zhaohui Li

Zhaohui Li

  

Director

/s/ Hansong Zhu

Hansong Zhu

  

Independent Director

/s/ Shun Lam Steven Tang

Shun Lam Steven Tang

  

Independent Director


SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES

Pursuant to the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Missfresh Limited has signed this registration statement or amendment thereto in New York, New York on October 18, 2021.

 

Authorized U.S. Representative
Cogency Global Inc.
By:   /s/ Colleen A. De Vries
Name:   Colleen A. De Vries
Title:   Senior Vice President on behalf of Cogency Global Inc.