As filed with the Securities and Exchange Commission on November
12, 2020
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
SPI ENERGY CO., LTD.
(Exact name of registrant as specified in its charter)
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Cayman Islands |
Not Applicable |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
#1128, 11/F, No. 52 Hung To Road
Kwun Tong
Kowloon
Hong Kong S.A.R.
(Address of principal executive offices, including zip code)
SPI Energy Co., Ltd. Equity Incentive Plan
for Phoenix Motorcars Employees
(Full title of the plan)
Cogency Global Inc.
10 E. 40th Street, 10th Floor
New York, NY 10016
Tel: (800) 221 0102
Fax: (800) 944 6607
(Name, address and telephone number, including area code, of agent
for service)
Copies to:
Mitchell S. Nussbaum, Esq.
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
(212) 407-4000 - Telephone
(212) 407-4990 - Facsimile
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. (Check one):
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| Large accelerated filer |
☐ |
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Accelerated filer |
☐ |
| Non-accelerated filer |
☒ |
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Smaller reporting company |
☐ |
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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. ☐
CALCULATION OF REGISTRATION FEE
|
Title of securities to be registered |
Amount to be registered(1) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee(2)(3) |
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Ordinary Share, $0.0001 par value |
1,805,820 |
$7.905 |
$14,275,007.10 |
$1,557.40 |
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TOTAL |
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$14,275,007.10 |
$1,557.40 |
| (1) |
Pursuant to Rule 416 under the Securities Act of 1933, as
amended (the “Securities Act”), this registration statement also
covers any additional securities that may be offered or issued
pursuant to the anti-dilution adjustment provisions of the SPI
Energy Co., Ltd. Equity Incentive Plan for Phoenix Motorcars
Employees (the “Plan”). |
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| (2) |
These 1,805,820 ordinary shares to be registered are reserved
for future grants under the Plan. Pursuant to Rule 457(h) under the
Securities Act, the proposed maximum offering price, per share and
in the aggregate, and the related portion of the aggregate
registration fee in respect of the ordinary shares available for
such future awards were determined upon the basis of the average of
the high and low prices of our Ordinary Shares, reported in the
consolidated reporting system on November 5, 2020, in accordance
with Rule 457(c) under the Securities Act. |
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 of 1933, as
amended (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 in the Plan covered by
this Registration Statement, as specified by Rule 428(b)(1) under
the Securities Act. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of
Part II of Form S-8, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| ITEM
3. |
INCORPORATION OF DOCUMENTS BY REFERENCE |
The following documents filed with the Securities and Exchange
Commission (the “Commission”) by SPI Energy Co., Ltd. (the
“Registrant”) are incorporated herein by reference.
(1) The Registrant’s Annual Report on Form 20-F for the fiscal year
ended December 31, 2019, filed on June 29, 2020; and
(2) The Registrant’s Current Reports on Form 6-K filed with the SEC
on February 3, 2020, March 16, 2020, March 26, 2020, March 31,
2020, April 30, 2020, September 30, 2020, October 1, 2020, October
6, 2020, October 8, 2020, October 15, 2020, October 28, 2020, and
November 4, 2020;
(3) The description of the Registrant’s ordinary shares contained
in the Registrant’s Registration Statement on Form F-4, as amended,
under the Securities Act, as originally filed with the SEC on May
11, 2015, as amended (Registration No. 333-204069) under the
heading, “Description of Securities,” and as incorporated into our
Registration Statement on Form 8-A, originally filed with the SEC
on January 15, 2016.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act (other than documents or portions of documents deemed
to be furnished pursuant to the Exchange Act), 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
herein and to be a part hereof from the date of filing of such
documents.
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 other
subsequently filed document which also is incorporated or 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. |
INTEREST 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 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 to provide indemnification against civil fraud or the
consequences of committing a crime. SPI’s Memorandum and Articles
of Association, as amended, provide for indemnification of officers
and directors for losses, damages, costs and expenses incurred in
their capacities as such, except that such indemnity shall not
extend to any matter in respect of any dishonesty, willful default
or fraud.
This provision, however, will not eliminate or limit liability
arising under federal securities laws. SPI’s Memorandum and
Articles of Association, as amended, do not eliminate its
director’s fiduciary duties. The inclusion of the foregoing
provision may, however, discourage or deter shareholders or
management from bringing a lawsuit against directors even though
such an action, if successful, might otherwise have benefited SPI
and its shareholders. This provision should not affect the
availability of a claim or right of action based upon a director’s
fraud or dishonesty.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is
therefore unenforceable.
| ITEM
7. |
EXEMPTION FROM REGISTRATION CLAIMED |
Not applicable.
See the attached Exhibit Index.
| ITEM
9. |
REQUIRED UNDERTAKINGS |
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(a) |
The undersigned Registrant hereby undertakes: |
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(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) |
To include any prospectus required by Section 10(a)(3) of the
Securities Act; |
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(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 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in
the effective registration statement; and |
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(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:
(A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the registration statement is on Form S-8 (§239.16b of
this chapter), and 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 Securities Exchange
Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by
reference in the registration statement; and
(B) Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the registration statement is on Form S-3
(§239.13 of this chapter), Form SF-3 (§239.45 of this chapter) or
Form F-3 (§239.33 of this chapter) and 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
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) (§230.424(b) of this
chapter) that is part of the registration statement.
(C) Provided further, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is for an
offering of asset-backed securities on Form SF-1 (§239.44 of this
chapter) or Form SF-3 (§239.45 of this chapter), and the
information required to be included in a post-effective amendment
is provided pursuant to Item 1100(c) of Regulation AB
(§229.1100(c)).
(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.
(5) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B (§230.430B of this
chapter):
(A) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) (§230.424(b)(3) of this chapter) shall be deemed to be
part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) (§230.424(b)(2), (b)(5), or (b)(7) of
this chapter) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) (§230.415(a)(1)(i), (vii), or (x) of
this chapter) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii) If the registrant is subject to Rule 430C (§230.430C of this
chapter), each prospectus filed pursuant to Rule 424(b) as part of
a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A (§230.430A of this
chapter), shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(iii) If the registrant is relying on §230.430D of this
chapter:
(A) Each prospectus filed by the registrant pursuant to
§230.424(b)(3) and (h) of this chapter shall be deemed to be part
of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement;
and
(B) Each prospectus required to be filed pursuant to
§230.424(b)(2), (b)(5), or (b)(7) of this chapter as part of a
registration statement in reliance on §230.430D of this chapter
relating to an offering made pursuant to §230.415(a)(1)(vii) or
(a)(1)(xii) of this chapter for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
(15 U.S.C. 77j(a)) shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in
the prospectus. As provided in §230.430D of this chapter, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(6) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424 (§230.424 of this chapter);
(ii) Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
(7) If the registrant is relying on §230.430D of this chapter, with
respect to any offering of securities registered on Form SF-3
(§239.45 of this chapter), to file the information previously
omitted from the prospectus filed as part of an effective
registration statement in accordance with §§230.424(h) and 230.430D
of this chapter.
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(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. |
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(h) |
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, 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 Hong Kong
S.A.R., Country of People’s Republic of China on November 12,
2020.
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SPI ENERGY CO., LTD. |
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By: |
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/s/Xiaofeng
Peng |
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Name: |
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Xiaofeng Peng |
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Title: |
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Chief Executive Officer |
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and appoints
Xiaofeng Peng as his or her true and lawful attorneys-in-fact and
agents, 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, exhibits thereto and other documents in
connection therewith) to this Registration Statement, and to file
the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents 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 attorneys-in-fact and agents, or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on November 12, 2020.
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Signature
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Title
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/s/ Xiaofeng Peng
Xiaofeng Peng
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Chief Executive Officer and Executive Chairman
(Principal Executive, Financial and Accounting Officer)
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/s/ Maurice Ngai
Maurice Ngai
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Director |
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/s/ HoongKhoeng Cheong
HoongKhoeng Cheong
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Director |
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/s/ Lu Qing
Lu Qing
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Director |
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/s/ Jing Zhang
Jing Zhang
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Director |
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EXHIBIT INDEX
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** |
To be filed as an exhibit to a post-effective amendment to this
registration statement or as an exhibit to a report filed or
furnished pursuant to the Exchange Act of the Registrant and
incorporated herein by reference. |
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