Newegg Commerce, Inc F-3/A, filed Oct 4, 2022
Newegg Commerce, Inc. (NEGG)
As filed with the Securities and Exchange Commission on October 4, 2022
Registration No. 333-265985
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Newegg Commerce, Inc.
(Exact name of registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
| British Virgin Islands | 98-1608057 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
Newegg Commerce, Inc.
17560 Rowland Street
City of Industry, CA 91748
Telephone: +1 (626) 271-9700
(Address and telephone number of Registrant’s principal executive offices)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
Telephone: +1 (800) 221-0102
(Name, address, and telephone number of agent for service)
Copies of communications, including communications sent to agent for service, should be sent to:
David C. Lee, Esq.
Eric Scarazzo, Esq.
Gibson, Dunn & Crutcher LLP
3161 Michelson Dr., Suite 1200
Irvine, CA 92612
+1 (949) 451-3800
Approximate date of commencement of proposed sale to the public: From time to time after the effectiveness of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereon that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, 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. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Newegg Commerce, Inc. (the “Company”) is filing this Amendment No. 2 (this “Amendment”) to the Registration Statement on Form S-3 (File No. 333-265985) as an exhibits-only filing to file Exhibit 5.3. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 9 of Part II of the Registration Statement, including the signature page and the exhibit index, and the filed Exhibit 5.3. The remainder of the Registration Statement is unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 9. Exhibits
| Exhibit No. | Name of Document | Method of Filing | ||
| 1.1 | Form of underwriting agreement for equity securities of the Company | * | ||
| 3.1 | Amended and Restated Memorandum and Articles of Association | Incorporated by reference to the Company’s Registration Statement on Form F-1/A, filed December 10, 2021. | ||
| 4.1 | Amended and Restated Newegg Inc. Shareholders Agreement | Incorporated by reference to the Company’s Registration Statement on Form F-1/A, filed December 10, 2021. | ||
| 4.2 | First Amendment to the Amended and Restated Newegg Inc. Shareholders Agreement | Incorporated by reference to Exhibit 1.1 to the Company’s Report on Form 6-K filed on April 28, 2022. | ||
| 4.3 | Second Amendment to the Amended and Restated Newegg Inc. Shareholders Agreement | Incorporated by reference to Exhibit 99.3 to the Company’s Report on Form 6-K filed on September 2, 2022. | ||
| 4.4 | Description of Securities | Incorporated by reference to Exhibit 2.1 to the Company’s Annual Report on Form 20-F (File No. 001-34661) filed on April 28, 2022. | ||
| 5.1 | Opinion of Conyers, Dill & Pearman, British Virgin Islands counsel, relating to the base prospectus | ** | ||
| 5.2 | Opinion of Gibson, Dunn & Crutcher LLP, U.S. counsel, relating to the base prospectus | ** | ||
| 5.3 | Opinion of Conyers, Dill & Pearman, British Virgin Islands counsel, relating to the base prospectus | Filed herewith. | ||
| 23.1 | Consent of BDO USA, LLP, Independent Registered Public Accounting Firm | ** | ||
| 23.2 | Consent of Conyers, Dill & Pearman | ** | ||
| 23.3 | Consent of Gibson, Dunn & Crutcher LLP | ** | ||
| 107 | Filing Fee Table. | ** |
| * | To be filed by amendment or incorporated by reference to a subsequently furnished Report on Form 6-K. |
| ** | Previously filed. |
II-1
SIGNATURES
Pursuant to the requirements of the U.S. 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 F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Industry, State of California on October 4, 2022.
| Newegg Commerce, Inc. | ||
| By: | /s/ Anthony Chow | |
| Anthony Chow | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, this Form F-3 registration statement has been signed by the following persons in the capacities and on the date indicated.
| Name | Title | Date | ||
| /s/ Anthony Chow | Chief Executive Officer and Director | October 4, 2022 | ||
| Anthony Chow | (Principal Executive Officer) | |||
| /s/ Robert Chang | Chief Financial Officer | October 4, 2022 | ||
| Robert Chang | (Principal Financial and Accounting Officer) | |||
| * | Chairman | October 4, 2022 | ||
| Zhitao He | ||||
| * | Vice Chairman | October 4, 2022 | ||
| Fred Chang | ||||
| * | Director | October 4, 2022 | ||
| Fuya Zheng | ||||
| * | Director | October 4, 2022 | ||
| Gregory Moore | ||||
| * | Director | October 4, 2022 | ||
| Yingmei Yang | ||||
| * | Director | October 4, 2022 | ||
| Poi (Paul) Wu |
| *By: | /s/ Anthony Chow | |
| Anthony Chow | ||
| Attorney-in-fact |
II-2
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 America, has signed this registration statement thereto in New York, NY on October 4, 2022.
| COGENCY GLOBAL INC. | |||
| By: | /s/ Colleen A. De Vries | ||
| Name: | Colleen A. De Vries | ||
| Title: | Senior Vice President | ||
II-3
Exhibit 5.3
 |
CONYERS DILL & PEARMAN
29th Floor One Exchange Square 8 Connaught Place Central Hong Kong T +852 2524 7106 | F +852 2845 9268 conyers.com |
4 October 2022
Matter No.: 864750
Doc ref: 108492546
852 2842 9530
Richard.Hall@conyers.com
Newegg Commerce, Inc.
17560 Rowland Street
City of Industry, CA 91748
United States of America
Dear Sir/ Madam,
Re: Newegg Commerce, Inc. (the “Company”)
We have acted as special British Virgin Islands legal counsel to the Company in connection with a registration statement on Form F-3 (File No. 333-265985) filed with the U.S. Securities and Exchange Commission (the “Commission”) on 1 July 2022, as amended by Amendment No. 1 filed with the Commission on 30 September 2022 and Amendment No. 2 filed with the Commission on 4 October 2022 (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) relating to, among other things, the registration under the U.S. Securities Act of 1933, as amended (the “Securities Act”) of 60,000,000 common shares in the Company of par value of US$0.021848 (“Common Shares”) to be sold by Digital Grid (Hong Kong) Technology Co., Limited (the “Selling Shareholder”).
| 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. |
We have also reviewed:
| 1.2. | a copy of the certificate of incorporation, the certificates of change of name, the current restated and amended memorandum and articles of association of the Company adopted on 13 May 2021 (the “M&A”), as obtained from the Registrar of Corporate Affairs at 3.30 p.m. on 20 September 2022; |
Partners:
Piers J. Alexander, Christopher W. H. Bickley, Peter H. Y. Ch’ng, Anna W. T. Chong, Angie Y. Y. Chu, Vivien C. S. Fung, Richard
J. Hall, Norman Hau, Wynne Lau, Paul M. L. Lim, Michael J. Makridakis,
Teresa F. Tsai, Flora K. Y. Wong, Lilian S. C. Woo, Mark P. Yeadon
Consultant: David M. Lamb
BERMUDA | BRITISH VIRGIN ISLANDS | CAYMAN ISLANDS
| 1.3. | copies of resolutions in writing signed by all the directors of the Company and dated 30 June 2022 (the “Resolutions”); |
| 1.4. | a copy of a certificate of good standing issued by the Registrar of Corporate Affairs and dated 20 September 2022; |
| 1.5. | a copy of the register of members of the Company provided by Computershare, the Company’s transfer agent, 29 September 2022 (the “Certified Register of Members”); and |
| 1.6. | 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 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 there is no provision of the law of any jurisdiction, other than the British Virgin Islands, which would have any implication in relation to the opinions expressed herein; and |
| 2.6. | the validity and binding effect under the laws of the United States of America of the Registration Statement. |
| 3. | QUALIFICATIONS |
| 3.1. | We have undertaken no enquiry and express no view as to the compliance of the Company with the Economic Substance (Companies and Limited Partnerships) Act, 2018. |
| 3.2. | We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than the British Virgin Islands. This opinion is to be governed by and construed in accordance with the laws of the British Virgin Islands and is limited to and is given on the basis of the current law and practice in the British Virgin Islands. This opinion is issued solely for your benefit and use in connection with the matter described herein and is not to be relied upon by any other person, firm or entity or in respect of any other matter. |
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| 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 British Virgin Islands in good standing (meaning solely that it has not failed to make any filing with any British Virgin Islands governmental authority or to pay any British Virgin Islands government fee or tax which would make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of the British Virgin Islands). |
| 4.2. | Based solely upon a review of the Certified Register of Members, the 222,821,592 Ordinary Shares registered in the name of the Selling Shareholder are validly issued, fully paid and non-assessable (which term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue thereof). |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Prospectus forming a part of the Registration Statement. In giving such consent, we do not hereby admit that we are experts within the meaning of Section 11 of the Securities Act or that we are in 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
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