As Filed with the Securities and Exchange Commission on December 18, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BEST Inc.
(Exact name of registrant as specified in its charter)
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Cayman Islands
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Not Applicable
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(State or other jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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2nd Floor, Block A, Huaxing Modern Industry Park
No. 18 Tangmiao Road, Xihu District, Hangzhou
Zhejiang Province 310013
People’s Republic of China
+86-571-88995656
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive
offices)
2008 Equity and Performance Incentive Plan
201
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Equity Incentive Plan
(Full title of the Plan)
Law Debenture Corporate Services Inc.
801 2nd Avenue, Suite 403
New York, New York 10017
+1-212-750-6474
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Lei Guo
Chief Accounting Officer
2nd Floor, Block A,
Huaxing Modern Industry Park
No. 18 Tangmiao Road, Xihu District, Hangzhou
Zhejiang Province 310013
People’s Republic of China
+86-571-8899-5656
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Chris K.H. Lin, Esq.
Daniel Fertig, Esq.
Simpson Thacher & Bartlett LLP
35th Floor, ICBC Tower
3 Garden Road
Central, Hong Kong
+852-2514-7600
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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.
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Large accelerated filer
o
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Accelerated filer
o
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Non-accelerated filer
x
(Do not check if a smaller reporting company)
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Smaller reporting company
o
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Emerging growth company
o
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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.
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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Class A ordinary shares, par value US$0.01 per share(2)
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- BEST Logistics Technologies Limited 2008 Equity and Performance Incentive Plan
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20,204,684(3)
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$0.69(4)
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$13,941,232.00
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$1,735.69
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- BEST Inc. 2017 Equity Incentive Plan
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9,969,500(5)
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$9.29(6)
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$92,616,655.00
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$11,530.77
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TOTAL
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30,174,184
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$106,557,887.00
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$13,266.46(7)
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(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
Class A
ordinary shares, par value US$0.01 per share (the “Class A Ordinary Shares”) of BEST Inc. (the “Company” or “Registrant”), which may be offered and issued under the Registrant’s 2008 Equity and Performance Incentive Plan (the “2008 Plan”) and 201
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Equity Incentive Plan (the “2017 Plan”) to prevent dilution from stock splits, stock dividends or similar transactions.
(2)
These
Class A Ordinary Shares
may be represented by the Registrant’s American depositary shares (“ADSs”), each of which represents one Class A Ordinary Share. ADSs issuable upon deposit of the securities registered hereby have been registered under a separate registration statement on Form F-6 (Registration No. 333-220361).
(3)
Represents
Class A Ordinary Shares
of the Registrant issuable pursuant to 19,105,628 options outstanding under the 2008 Plan plus an additional 1,099,056 Class A Ordinary Shares reserved for issuance with respect to future awards under the 2008 Plan.
(4)
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee. The price of $
0.69
per share represents the weighted average of the exercise prices for outstanding options under the 2008 Plan.
(5)
Represents Class A Ordinary Shares of the Registrant issuable pursuant to 40,000 options outstanding under the 2017 Plan plus an additional 9,929,500 Class A Ordinary Shares reserved for issuance with respect to future awards under the 2017 Plan.
(6)
Estimated in accordance with Rule 457
(c) and
(h) solely for the purpose of calculating the registration fee based on the average of the high and low prices of the Registrant’s ADSs as quoted on the
New York Stock Exchange
on
December 14
, 2017 divided by
one
, the then
Class A O
rdinary
S
hare-to-ADS ratio.
(7)
Pursuant to Rule 457(p) under the Securities Act, the registrant is applying a portion of the previously paid excess filing fee of US$34,187.56 associated with 19,665,000 unsold securities under its registration statement on Form F-1 (File No. 333-218959) initially filed by the registrant on June 26, 2017 and declared effective by the Securities and Exchange Commission on September 19, 2017, to offset the total filing fee of US$13,266.46 that would otherwise be due hereunder. Accordingly, the registrant is not submitting additional filing fees in connection with this registration statement.
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 officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as providing indemnification against civil fraud or the consequences of committing a crime. The Registrant’s articles of association provide that each officer or director of the Registrant shall be indemnified against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such directors or officer, other than by reason of such person’s 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 his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such director or officer 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.
In addition, the Registrant has entered, and intends to continue to enter into, indemnification agreements, substantially in the form filed as Exhibit 10.10 to the Registrant’s Registration Statement on Form F-1 (Registration No. 333-218959), as amended, originally filed with the Commission on June 26, 2017, with its directors and executive officers to indemnify such persons in connection with claims made by reason of their being such a director or executive officer.
The registrant currently carries liability insurance for its directors and executive officers.
ITEM 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
The Exhibits listed on the accompanying Exhibit Index are filed as a part of, or incorporated by reference into, this Registration Statement. (See Exhibit Index below).
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;
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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
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(iii)
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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;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and 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 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
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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 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.
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Shao-Ning Johnny Chou and Lei Guo, and each of them singly, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and re-substitution, 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, as amended, and all post-effective amendments thereto and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith 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 attorneys-in-fact and agents, or any of them, 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 and on the dates indicated.
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Signature
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Title
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Date
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/s/ Shao-Ning Johnny Chou
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Chairman and Chief Executive Officer
(principal executive officer)
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December 18, 2017
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Name: Shao-Ning Johnny Chou
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/s/ Lei Guo
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Chief Accounting Officer and
Vice President of Finance
(principal financial and accounting officer)
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December 18, 2017
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Name: Lei Guo
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/s/ Wenhong Tong
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Director
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December 18, 2017
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Name: Wenhong Tong
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/s/ Jun Chen
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Director
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December 18, 2017
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Name: Jun Chen
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/s/ Mark Qiu
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Director
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December 18, 2017
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Name: Mark Qiu
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/s/ George Chow
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Director
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December 18, 2017
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Name: George Chow
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/s/ Quan Hao
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Director
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December 18, 2017
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Name: Quan Hao
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/s/ Wenbiao Li
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Director
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December 18, 2017
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Name: Wenbiao Li
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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 BEST Inc. has signed this registration statement or amendment thereto in New York, New York on December
18, 2017.
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By:
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/s/
Giselle Manon
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Name:
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Giselle Manon
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Title:
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Service of Process Officer
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La
w Debenture Corporate Services Inc.
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