RTC Baijiayun Group Ltd

As filed with the Securities and Exchange Commission on June 29, 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

 

Baijiayun Group Ltd

(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 No.)

 

24F, A1 South Building, No. 32 Fengzhan Road

Yuhuatai District, Nanjing 210000

The People’s Republic of China

Tel: (86)-25 8222-1596

(Address of Principal Executive Offices and Zip Code)

 

2023 Share Incentive Plan

(Full title of the plan)

 

Cogency Global Inc.

122 East 42nd Street, 18th Floor

New York, NY 10168

(800) 221-0102

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

 

Copies to:

 

Gangjiang Li Chairman and Chief Executive Officer 24F, A1 South Building, No. 32 Fengzhan Road Yuhuatai District, Nanjing 210000 The People’s Republic of China Tel: (86)-25 8222-1596		Dan Ouyang, Esq.
		Wilson Sonsini Goodrich & Rosati
		Professional Corporation
		Unit 2901, 29F, Tower C, Beijing Yintai Centre
		No. 2 Jianguomenwai Avenue
		Chaoyang District, Beijing 100022
		People’s Republic of China
		Tel: (86) 10-6529-8300

 

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 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. ☐

 

 

 

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 introductory note to Part I of Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. The documents containing information specified in this Part I will be separately provided to the participants covered by the 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 Baijiayun Group Ltd (the “Registrant”) with the Commission are incorporated by reference herein:

 

(a)	The annual report of the predecessor of the Registrant, Fuwei Films (Holdings) Co., Ltd., on Form 20-F (File No. 001-33176) filed with the Commission on April 28, 2022, which includes audited financial statements of Fuwei Films (Holdings) Co., Ltd. for the three years ended December 31, 2021;
(b)	The Registrant’s transition report on Form 20-F (File No. 001-33176) filed with the Commission on January 20, 2023, which includes audited financial statements of Baijiayun Limited for the three fiscal years ended June 30, 2022; and
(c)	The description of the Registrant’s Class A ordinary shares as contained in Exhibit 2.2 to the Registrant’s transition report on Form 20-F (File No. 001-33176) filed with the Commission on January 20, 2023.

 

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 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 fraud or dishonesty.

 

The second amended and restated articles of association of the Registrant provide that each officer or director of the Registrant shall be indemnified out of its assets and profits against all actions, costs, charges, losses, damages and expenses incurred or sustained by such director or officer, by or by reason of any act done, concurred in or omitted in or about the execution of their duty, or supposed duty, in their respective offices or trusts, other than by reason of such person’s own dishonesty or fraud.

 

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.

 

 

Item 7. Exemption from Registration Claimed

 

Not applicable.

 

Item 8. Exhibits

 

See the Exhibit Index 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.

 

(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.

 

 

EXHIBIT INDEX

 

Exhibit Number		Description
4.1		Third Amended and Restated Memorandum of Association and Second Amended and Restated Articles of Association, as currently in effect (incorporated by reference to Exhibit 1.1 to the Registrant’s transition report on Form 20-F filed with the Commission on January 20, 2023)
4.2		Registrant’s Specimen Certificate for Class A Ordinary Shares (incorporated by reference to Exhibit 2.1 to the Registrant’s transition report on Form 20-F filed with the Commission on January 20, 2023)
5.1*		Opinion of Conyers Dill & Pearman regarding the validity of the Class A ordinary shares being registered
10.1		2023 Share Incentive Plan (incorporated by reference to Exhibit 10.8 to the Registrant’s registration statement on Form F-1 initially filed with the Commission on March 27, 2023, as amended)
23.1*		Consent of MaloneBailey, LLP
23.2*		Consent of Friedman LLP
23.3*		Consent of Shandong Haoxin Certified Public Accountants Co., Ltd.
23.4*		Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
24.1*		Powers of Attorney (included on signature page hereto)
107*		Filing Fee Table

 

*	Filed herewith.

 

 

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 Nanjing, China, on June 29, 2023.

 

	Baijiayun Group Ltd
	By:	/s/ Gangjiang Li
		Name:	Gangjiang Li
		Title:	Chairman and Chief Executive Officer

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Mr. Gangjiang Li, as his or her true and lawful attorney-in-fact and agent, 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 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, 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 attorney-in-fact and agent 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 on June 29, 2023 in the capacities indicated.

 

Signature		Title
/s/ Gangjiang Li		Chairman and Chief Executive Officer
Gangjiang Li		(Principal Executive Officer)
/s/ Yong Fang		Chief Financial Officer
Yong Fang		(Principal Financial and Accounting Officer)
/s/ Yi Ma		Director and President
Yi Ma
/s/ Chun Liu		Director
Chun Liu
/s/ Erlu Lin		Director
Erlu Lin
/s/ Ching Chiu		Director
Ching Chiu

 

 

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 Baijiayun Group Ltd has signed this registration statement or amendment thereto in New York on June 29, 2023.

 

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

 

 

 

II-6

 

Exhibit 5.1

 

		CONYERS DILL & PEARMAN
		29th Floor
		One Exchange Square
		8 Connaught Place
		Central
		Hong Kong
		T +852 2524 7106 | F +852 2845 9268
		conyers.com

  

29 June 2023

 

Matter No.: M#999989

Doc No.: 109146288

(852) 2842 95556 / 2842 9566

Christopher.Bickley@conyers.com
Rita.Leung@conyers.com

 

Baijiayun Group Ltd

Cricket Square, Hutchins Drive

P.O. Box 2681, Grand Cayman

KY1-1111, Cayman Islands

 

Dear Sirs,

 

Re: Baijiayun Group Ltd (the “Company”)

 

We have acted as special Cayman Islands legal counsel to the Company in connection with a registration statement on Form S-8, including all amendments or supplements thereto (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), filed with the U.S. Securities and Exchange Commission (the “Commission”) on or about the date hereof relating to the registration under the U.S. Securities Act of 1933, as amended, (the “Securities Act”) of 12,855,546 Class A ordinary shares of par value US$0.519008 per share of the Company (the “Class A Ordinary Shares”) issuable upon exercise of options and conversion of restricted share units and pursuant to other awards granted under the Company’s 2023 share incentive plan (the “Plan”).

 

1.

DOCUMENTS REVIEWED

 

For the purposes of giving this opinion, we have examined the following document(s):

 

1.1.

a copy of the Registration Statement;

 

1.2.

a copy of the Plan;

 

 

  

 

1.3.

a copy of the third amended and restated memorandum of association and the second amended and restated articles of association of the Company which became effective on 23 December 2022 (the “Constitutional Documents”);

 

1.4.

copies of the written resolutions of its directors dated 21 January 2023 and 27 June 2023 approving adoption of the Plan and filing of the Registration Statement (collectively, the “Resolutions”);

 

1.5.

a copy of a Certificate of Good Standing issued by the Registrar of Companies in relation to the Company on 20 June 2023 (the “Certificate Date”);

 

1.6.

a copy of a certificate issued by a director of the Company dated 28 June 2023; and

 

1.7.

such other documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion set forth below.

 

2.

ASSUMPTIONS

 

We have assumed:

 

2.1.

the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken;

 

2.2.

that where a document has been examined by us in draft form, it will be or has been executed and/or filed in the form of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn to our attention;

 

2.3.

the accuracy and completeness of all factual representations made in the Registration Statement and other documents reviewed by us;

 

2.4.

that the Resolutions were passed at one or more duly convened, constituted and quorate meetings or by unanimous written resolutions, remain in full force and effect and have not been rescinded or amended;

 

2.5.

that the Constitutional Documents will not be amended in any manner that would affect the opinions expressed herein;

 

2.6.

that the issuance of the Class A Ordinary Shares will be in accordance with the terms of the Plan;

 

2.7.

that on the date of issuance of any of the Class A Ordinary Shares, the Company will have sufficient authorised but unissued Class A Ordinary Shares;

 

2.8.

that on the date of issuance of any award under the Plan, the Company will be able to pay its liabilities as they become due;

 

 

2.9.

that any conditions to which the Resolutions are subject will have been satisfied and/or waived;

 

2.10.

that there is no provision of the law of any jurisdiction, other than the Cayman Islands, which would have any implication in relation to the opinions expressed herein;

 

2.11.

that upon issue of any Class A Ordinary Shares by the Company, the Company will receive consideration for the full issue price thereof which shall be equal to at least the par value thereof; and

 

2.12.

the validity and binding effect under the laws of the United States of America of the Registration Statement and that the Registration Statement will be duly filed with and/or declared effective by the Commission.

 

3.

QUALIFICATIONS

 

We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than the Cayman Islands. This opinion is to be governed by and construed in accordance with the laws of the Cayman Islands and is limited to and is given on the basis of the current law and practice in the Cayman Islands. This opinion is issued solely for the purposes of the filing of the Registration Statement and the issuance of the Class A Ordinary Shares by the Company pursuant to the Plan and is not to be relied upon in respect of any other matter.

 

4.

OPINION

 

On the basis of and subject to the foregoing, we are of the opinion that:

 

4.1.

The Company is duly incorporated and existing under the laws of the Cayman Islands and, based on the Certificate of Good Standing, is in good standing as at the Certificate Date. Pursuant to the Companies Act (the “Act”), a company is deemed to be in good standing if all fees and penalties under the Act have been paid and the Registrar of Companies has no knowledge that the Company is in default under the Act.

 

4.2.

The Class A Ordinary Shares, when issued and paid for in accordance with the Plan, will be validly issued, fully paid and non-assessable (which term means when used herein that no further sums are required to be paid by the holders thereof in connection with the issue or holding of such shares.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.  In giving this consent, we do not hereby admit that we are experts within the meaning of Section 11 of the Securities Act or that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.

 

Yours faithfully,

 

/s/ Conyers Dill & Pearman

Conyers Dill & Pearman

 

 

conyers.com | 3

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 20, 2023 with respect to the audited consolidated financial statements of BaiJiaYun Limited appearing in the transition report on Form 20-F of Baijiayun Group Ltd for the year ended June 30, 2022.

 

/s/ MaloneBailey, LLP
www.malonebailey.com
Houston, Texas
June 29, 2023

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 of Baijiayun Group Ltd of our report dated August 12, 2022, relating to the consolidated balance sheet of BaiJiaYun Limited, its subsidiaries, its variable interest entity (“VIE”) and its VIE’s subsidiaries as of June 30, 2021, and the related consolidated statements of operations and comprehensive income, changes in shareholders’ deficit, and cash flows for each of the years in the two-year period ended June 30, 2021, which report appears in the transition report of Baijiayun Group Ltd on Form 20-F (File No. 001-33176) filed with the Securities and Exchange Commission on January 20, 2023. We ceased to be the auditor of BaiJiaYun Limited on September 13, 2022 and, accordingly, we have not performed any audit or review procedures with respect to any financial statements of BaiJiaYun Limited, its subsidiaries, its VIE and its VIE’s subsidiaries appearing in such Registration Statement for the periods after June 30, 2021.

 

/s/ Friedman LLP

 

New York, New York

June 29, 2023

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit 23.3

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Baijiayun Group Ltd of our report dated April 28, 2022 relating to the consolidated financial statements of Fuwei Films (Holdings) Co., Ltd. for the three years ended December 31, 2021, which appears in the Annual Report on Form 20-F of Fuwei Films (Holdings) Co., Ltd. for the year ended December 31, 2021.

 

Very truly yours,

 

/s/ Shandong Haoxin Certified Public Accountants Co., Ltd.
Shandong Haoxin Certified Public Accountants Co., Ltd.

 

Weifang, the People’s Republic of China

June 29, 2023

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

FORM S-8

(Form Type)

 

Baijiayun Group Ltd

 

(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)(3)				Proposed Maximum Offering Price Per Share				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
Equity		Class A ordinary shares, par value $0.519008 per share		Rule 457(c) and (h)			12,855,546	(2)		$	7.8625			$	101,076,730.43			$	0.0001102			$	11,138.66
Total Offering Amounts														$	101,076,730.43							$	11,138.66
Total Fees Previously Paid																						$	-
Total Fee Offsets																						$	-
Net Fee Due																						$	11,138.66

 

(1)	Represents Class A ordinary shares which are issuable under the 2023 Share Incentive Plan of the Registrant. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement is deemed to cover an indeterminate number of Class A ordinary shares which may be offered and issued to prevent dilution resulting from share splits, share dividends or similar transactions as provided in the 2023 Share Incentive Plan.
(2)	Represents Class A ordinary shares to be issued pursuant to the 2023 Share Incentive Plan. The proposed maximum offering price per share, which is estimated solely for the purposes of calculating the registration fee under Rule 457(h) and Rule 457(c) under the Securities Act, is based on US$7.8625 per share, the average of the high and low prices for the Registrant’s Class A ordinary shares as quoted on the Nasdaq Capital Market on June 23, 2023.
(3)	Any Class A ordinary share covered by an award granted under the 2023 Share Incentive Plan (or portion of an award) that is forfeited, cancelled or otherwise expired for any reason without having been exercised shall be deemed not to have been issued for purposes of determining the maximum aggregate number of Class A ordinary shares which may be issued under the 2023 Share Incentive Plan.

 

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