Newegg Commerce, Inc 6-K, filed Apr 28, 2022
Newegg Commerce, Inc. (NEGG)
About this 6-K
Newegg Commerce, Inc filed this 6-K on April 28, 2022.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of April 2022
Commission File Number: 001-34661
Newegg Commerce, Inc.
(Translation of registrant’s name in English)
17560 Rowland Street, City of Industry, CA 91748
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
By agreement dated March 22, 2022, Newegg Commerce, Inc. (the “Company”), Mr. Fred Chang (“Mr. Chang”), and other Company shareholders entered into an amendment (the “First Amendment”) to the Company’s Amended and Restated Shareholders Agreement dated as of May 19, 2021 (the “Shareholders Agreement”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Shareholders Agreement. The First Amendment made the ROFR Right in Section 1.03 apply only to 90% of the shares of the Company’s common shares that are subject to such ROFR Right collectively owned by each Principal Shareholder and its Affiliates, calculated as of May 19, 2021.
Subsequent to execution of the First Amendment, the Company granted an exception to its currently effective Insider Trading Policy to Mr. Chang to allow Mr. Chang to enter into one or more agreements with one or more banks, pursuant to which such banks may extend loans to Mr. Chang and Mr. Chang may pledge a certain number of Company shares, not to exceed 32,000,000 shares in the aggregate, owned by Mr. Chang to such banks as security for such loans.
The above description of the First Amendment is not complete and is qualified in its entirety by the actual terms of the First Amendment, a copy of which is attached hereto as Exhibit 1.1.
INDEX TO EXHIBITS
| Exhibit No. | Exhibit Title | |
| 1.1 | First Amendment to the Amended and Restated Shareholders Agreement, dated as of March 22, 2022. |
1
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Newegg Commerce, Inc. | ||
| April 28, 2022 | By: | /s/ Robert Chang |
| Robert Chang | ||
| Chief Financial Officer |
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Exhibit 1.1
NEWEGG COMMERCE, INC.
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
This First Amendment to the Amended and Restated Shareholders Agreement, dated as of March 22, 2022 (the “First Amendment”), is made by and among (i) Newegg Commerce, Inc., a British Virgin Islands company (the “Company”), (ii) Fred Chang, an individual in his capacity as the Minority Representative, and (iii) such other Persons whose names appear on the signature pages hereto (collectively, the “Newegg Shareholders”). Each of the parties hereto is sometimes referred to collectively as the “Parties” in this First Amendment. All capitalized terms used but not defined herein shall have the meanings as defined in the Shareholders Agreement (as defined below), unless otherwise provided.
RECITALS
WHEREAS, Newegg Inc., a Delaware corporation (“Newegg Delaware”), Digital Grid (Hong Kong) Technology Co., Limited, a Hong Kong company, and certain Newegg Shareholders entered into that certain Stockholders Agreement on March 30, 2017 (the “Original Agreement”);
WHEREAS, Newegg Delaware, the Company (under its former name of Lianluo Smart Limited), and Lightning Delaware Sub, Inc., a Delaware corporation, entered into that certain Agreement and Plan of Merger dated October 23, 2020 (the “Merger Agreement”);
WHEREAS, as a condition to the closing of the transactions contemplated by the Merger Agreement, the Original Agreement was amended and restated by that certain Amended and Restated Shareholders Agreement with an effective date of May 19, 2021 (the “Shareholders Agreement”); and
WHEREAS, the Parties now wish to amend the Shareholders Agreement such that the Right of First Refusal contained in Section 1.03 of the Shareholders Agreement shall apply only to 90% of the shares of the Company’s common stock that are subject to such Right of First Refusal collectively owned by each Principal Shareholder and its Affiliates, as calculated on May 19, 2021.
NOW THEREFORE, in consideration of the mutual covenants, conditions and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound agree as follows:
| 1. | Section 1.03(a) of the Shareholders Agreement is hereby amended and restated in full such that it reads as follows: |
In the event that any Principal Shareholder or any of its Affiliates (a “Transferring Shareholder”) receives a bona fide offer from one or more Persons other than an Affiliate Transferee (each, a “Third Party Purchaser”) to acquire any or all of its or its Affiliates’ Company Shares, and such Transferring Shareholder desires to Transfer any or all of its Company Shares (the “ROFR Shares”) to such Third Party Purchaser pursuant to such bona fide offer (a “ROFR Sale”), then (i) the Company shall have the right (a “ROFR Right”), but not the obligation, to elect to purchase all (and not less than all) of the ROFR Shares proposed to be Transferred to the Third Party Purchaser, at the same price, and on the same terms and conditions offered by the Third Party Purchaser (the “ROFR Terms”), (ii) in the event the Company does not deliver a ROFR Exercise Notice during the Company ROFR Exercise Period, or delivers a ROFR Exercise Notice for less than all of the ROFR Shares, then each of the Principal Shareholders other than the Transferring Shareholders (each, a “ROFR Shareholder”) shall have a ROFR Right to elect to purchase all (and not less than all) of its Pro Rata Share of the ROFR Shares proposed to be Transferred to the Third Party Purchaser on the ROFR Terms; provided, however, that notwithstanding anything to the contrary, ten percent (10%) of Company Shares collectively held by each Principal Shareholder and its Affiliates, calculated as of May 19, 2021, that are subject to any ROFR Rights shall be exempt from any ROFR Rights. In the event that a ROFR Sale is in exchange for non-cash consideration, then the ROFR Right shall be exercisable based on the Fair Market Value of such non-cash consideration.
| 2. | Except as explicitly amended by this First Amendment, the terms of the Shareholders Agreement shall remain in full force and effect. In particular but without limitation, nothing contained in this First Amendment shall impair or limit the terms of Article III of the Shareholders Agreement. |
| 3. | The terms of the Shareholders Agreement shall control in the event of a conflict between its provisions and those of the First Amendment. |
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IN WITNESS WHEREOF, the Parties have caused this First Amendment to be signed by their respective officers thereunto duly authorized all as of the date first written above.
| Newegg Commerce, Inc. | ||
| By: | /s/ Anthony Chow | |
| Name: | Anthony Chow | |
| Title: | Chief Executive Officer | |
| Digital Grid (Hong Kong) Technology Co., Limited | ||
| By: |  |
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| Name: | ||
| Title: | ||
| Hangzhou Lianluo Interactive Technology Co., Ltd. | ||
| By: | |
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| Name: | ||
| Title: | ||
| Hyperfinite Galaxy Holding Limited | ||
| By: | |
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| Name: | ||
| Title: | ||
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| /s/ Fred Chang | ||
| Fred Chang, as Minority Representative | ||
| Tekhill USA LLC | ||
| By: | /s/ Fred Chang | |
| Name: | Fred Chang | |
| Title: | Managing Member | |
| Nabal Spring LLC | ||
| By: | /s/ Fred Chang | |
| Name: | Fred Chang | |
| Title: | Managing Member | |
| Fred Chang Partners Trust | ||
| By: | /s/ Fred Chang | |
| Trustee of the Fred Chang Partners Trust | ||
| Chang 2009 Annuity Trust No. 1 | ||
| By: | /s/ Fred Chang | |
| Trustee of the Chang 2009 Annuity Trust No. 1 | ||
| Chang 2009 Annuity Trust No. 2 | ||
| By: | /s/ Fred Chang | |
| Trustee of the Chang 2009 Annuity Trust No. 2 | ||
| Chang 2009 Annuity Trust No. 3 | ||
| By: | /s/ Fred Chang | |
| Trustee of the Chang 2009 Annuity Trust No. 3 | ||
| Chang Trust of 2008 | ||
| By: | /s/ Fred Chang | |
| Trustee of the Chang Trust of 2008 | ||
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