As filed with the Securities and Exchange Commission on September 13, 2021

Registration No. 333-            

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Newegg Commerce, Inc.

(Exact name of registrant as specified in its charter)

 

British Virgin Islands   Not Applicable
(State or Other Jurisdiction
of Incorporation or Organization) 		  (I.R.S. Employer
Identification No.)

 

17560 Rowland Street

City of Industry, California 91748

(Address of Principal Executive Offices, Zip Code)

 

NEWEGG INC. FOURTH AMENDED AND RESTATED 2005 INCENTIVE AWARD PLAN
(Full title of the Plan)

 

Matt Strathman
17560 Rowland Street
City of Industry, California 91748
(Name and address of agent for service)

 

(626) 271-9700

(Telephone number, including area code, of agent for service)

 

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.

 

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. ☐

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered   Amount
to be
Registered(1)  		    Proposed
Maximum
Offering Price
Per Share(2)  		    Proposed
Maximum
Aggregate
Offering Price(2)  		    Amount of
Registration Fee 		 
Common shares, par value $0.021848, issuable in respect of stock options or available for issuance under the Newegg, Inc. Fourth Amended and Restated 2005 Incentive Award Plan     75,741,449     $ 2.6820     $ 203,136,744     $ 22,163  

 

(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered such additional shares of common stock as may become issuable in accordance with the applicable plan, including stock splits, stock dividends or similar transactions.

 

(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act. For shares of Common Stock subject to the outstanding stock options granted pursuant to the plan, the offering price per share and aggregate offering price are based upon the weighted average exercise price for those options. For shares of Common Stock reserved but not yet granted under the plan, the offering price per share and aggregate offering price are based upon the average of the high and low prices reported on NASDAQ for the Common Stock on September 7, 2021.

 

 

 

 

 

 

EXPLANATORY NOTE

 

On May 19, 2021, pursuant to that certain Agreement and Plan of Merger dated October 23, 2020 by and between Lightning Delaware Sub, Inc., a Delaware company and a wholly owned subsidiary of Lianluo Smart Limited, a British Virgin Islands company (“LLIT”) and Newegg Inc. (“Newegg”), a company incorporated under the laws of Delaware, Newegg survived the merger and became LLIT’s wholly owned subsidiary (the “Merger”). Following the closing of the Merger, LLIT was renamed Newegg Commerce, Inc., a British Virgin Islands company (the “Company”) and the common shares of the Company, par value $0.021848 per share (the “Common Shares”) began trading under the Company’s new symbol “NEGG” on the Nasdaq Capital Market on May 20, 2021. In connection with the Merger, the Company assumed the Newegg Inc. Fourth Amended and Restated 2005 Incentive Award Plan (the “2005 Plan”) with each outstanding option under the 2005 Plan granted by Newegg being exchanged for options to acquire 5.8417 Company Common Shares under the 2005 Plan upon completion of the Merger. This Registration Statement on Form S-8 is being filed by the Company, relating to 75,741,449 Common Shares that are issuable pursuant to outstanding options and available for issuance under the 2005 Plan.

 

 

 

 

PART I

 

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 “Note” to Part I of Form S-8.

 

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PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents, previously filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration Statement and deemed to be a part hereof:

 

(1) The Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2020, filed with the Commission on March 31, 2021;
(2) The Company's Current Reports on Form 6-K filed with the Commission on May 12, 2021, May 19, 2021, August 27, 2021, and August 27, 2021;
(3) All other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2020 (other than the portions of those documents furnished or otherwise not deemed to be filed); and
(4) The description of the common shares, $0.002731 par value per share, contained in the Company’s registration statement on Form F-4 filed with the SEC on October 26, 2020 (File Number 333-249660) and declared effective on April 14, 2021 and any amendment or report filed with the SEC for purposes of updating such description.

 

2

 

 

All documents filed by the Corporation pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than the portions of those documents furnished or otherwise not deemed to be filed) subsequent to the effective date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement 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 subsequently filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such statement. Any 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. Interests of Named Experts and Counsel.

 

Not Applicable.

 

Item 6. Indemnification of Directors and Officers.

 

British Virgin 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 British Virgin Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. Under the memorandum and articles of association of the Company, the Company may indemnify its directors, officers and liquidators against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with civil, criminal, administrative or investigative proceedings to which they are party or are threatened to be made a party by reason of their acting as our director, officer or liquidator. To be entitled to indemnification, these persons must have acted honestly and in good faith with a view to the best interest of the Company and, in the case of criminal proceedings, they must have had no reasonable cause to believe their conduct was unlawful.

 

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company 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.

 

3

 

 

Item 7. Exemption from Registration Claimed.

 

Not Applicable.

 

Item 8. Exhibits.

 

Exhibit No.   Exhibit Description
     
4.1   Amended and Restated Memorandum and Articles of Association of the Lianluo Smart Limited (incorporated by reference to Exhibit 99.1 to the Company’s Report of Foreign Issuer on Form 6-K filed on October 23, 2020).
     
5.1*   Opinion of Conyers Dill & Pearman, British Virgin Islands Counsel.
     
23.1*   Consent of BDO China Shu Lun Pan Certified Public Accountants LLP, Independent Registered Public Accounting Firm.
     
23.2*   Consent of Conyers Dill & Pearman (included in Exhibit 5.1).
     
23.3*   Consent of Centurion ZD CPA & Co. (successor of Centurion ZD CPA Limited), Independent Registered Accounting Firm
     
24.1*   Power of Attorney (included on signature page hereto).
     
99.1   Newegg, Inc. Fourth Amended and Restated 2005 Incentive Award Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form F-1 filed on October 26, 2020)

 

 

* Filed herewith.

 

Item 9. Undertakings.

 

(a) The undersigned Company 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 of 1933;

 

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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 the 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 a prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 such information in the registration statement.

 

(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.

 

(b) That, for the purposes of determining liability under the Securities Act of 1933, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 in the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of such issue.

 

5

 

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all 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 Industry, California, on this 9th day of September, 2021.

 

  NEWEGG COMMERCE, INC.
     
  By: /s/ ANTHONY CHOW
  Name:   Anthony Chow
  Title: Chief Executive Officer and Director

 

POWER OF ATTORNEY

 

Each person whose signature appears below appoints Anthony Chow, 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) to this Registration Statement and any Registration Statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange 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, as fully to all intents and purposes as he might or would 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 below by the following persons in the capacities and the dates indicated.

 

Signature   Title   Date
         
/s/ ANTHONY CHOW   Chief Executive Officer and Director   September 9, 2021
Anthony Chow   (Principal Executive Officer)    
         
/s/ ROBERT CHANG   Chief Financial Officer   September 9, 2021
Robert Chang   (Principal Financial and Accounting Officer)    
         
/s/ ZHITAO HE   Chairman and Director   September 9, 2021
Zhitao He        
         
/s/ FRED CHANG   Director   September 9, 2021
Fred Chang        
         
/s/ FUYA ZHENG   Director   September 9, 2021
Fuya Zheng        
         
/s/ GREGORY MOORE   Director   September 9, 2021
Gregory Moore        
         
/s/ YINGMEI YANG   Director   September 9, 2021
Yingmei Yang        
         
/s/ PAUL WU   Director   September 9, 2021
Paul Wu        

 

 

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

 

10 September 2021

Matter No.: 864600

Doc Ref: 107438867
852 2842 9530 / 2842 9422
Richard.Hall@conyers.com
Yvonne.Lee@conyers.com

 

Newegg Commerce, Inc.

17560 Rowland Street

City of Industry, California 91748

 

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 S-8 filed by the Company with the United States Securities and Exchange Commission (the “Commission”) on or about the date hereof (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 the registration of an aggregate of 75,741,458 common shares of par value of US$0.021848 each (the “Shares”) to be issued pursuant to the Fourth Amended and Restated 2005 Incentive Award Plan of the Company as adopted on 18 September 2015 (the “Plan”, 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).

 

1. DOCUMENTS REVIEWED

 

For the purposes of giving this opinion, we have examined and relied upon copies of the following documents:

 

1.1. the Registration Statement; and

 

1.2. the Plan.

 

The documents listed in items 1.1 through 1.2 above are herein sometimes collectively referred to as the “Documents” (which term does not include any other instrument or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto).

 

We have also reviewed:

 

1.3. a copy of the certificate of incorporation, the amended and restated memorandum of association and the amended and restated articles of association of the Company, as obtained from the Registrar of Corporate Affairs at 5:00 p.m. on 8 September 2021;

 

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

 

 

 

 

1.4. copies of the written consent of the board of directors of the Company dated 18 September 2015 and 9 September 2021 and the written consent of the majority stockholder of the Company dated 18 September 2015 (collectively, the “Resolutions”);

 

1.5. a copy of certificate of good standing of the Company issued by the Registrar of Corporate Affairs and dated 8 September 2021 (the “Certificate Date”); 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 of documents (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken;

 

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

 

2.3. 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;

 

2.4. 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;

 

2.5. that upon issue of any 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;

 

2.6. 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 the Commission;

 

2.7. that on the date of issuance of any of the Shares, the Company will have sufficient authorised but unissued Shares; and

 

2.8. that on the date of issuance of any Shares or exercise of any award under the Plan, the Company will be able to pay its liabilities as they become due.

 

3. QUALIFICATIONS

 

3.1. We express no opinion with respect to the issuance of Shares pursuant to any provision of the Plan that purports to obligate the Company to issue Shares following the commencement of a winding up or liquidation.

 

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 the purposes of the filing of the Registration Statement and the issuance of the Shares by the Company and is not to be relied upon in respect of any other matter.

 

  conyers.com │2

 

 

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. The 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 with the Commission 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,

 

 

 

Conyers Dill & Pearman

 

 

conyers.com │3

 

 

Exhibit 23.1 

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of Newegg Commerce, Inc. (Formerly known as Lianluo Smart Limited) (the “Company”) of our report dated March 31, 2021, relating to the Company’s consolidated financial statements which appears in the Annual Report on Form 20-F of the Company for the year ended December 31, 2020.

 

/s/ BDO China Shu Lun Pan Certified Public Accountants LLP

 

Beijing, China

September 9, 2021

 

 

Exhibit 23.3

 

中正達會計師事務所
Centurion ZD CPA & Co.
Certified Public Accountants (Practising)

 

Unit 1304, 13/F, Two Harbourfront, 22 Tak Fung Street, Hunghom, Hong Kong.

香港 紅磡 德豐街 22 號 海濱廣場二期 13 樓 1304 室

Tel 電話: (852) 2126 2388             Fax 傳真: (852) 2122 9078

Email 電郵: info@czdcpa.com

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated May 15, 2019 (except for share combination included in Note 3, as to which the date is October 26, 2020) relating to the consolidated statements of operations and comprehensive loss, changes in equity and cash flows of Newegg Commerce, Inc. (previously known as Lianluo Smart Limited) and its subsidiaries (collectively the “Company”) for the year ended December 31, 2018, appearing in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2020.

 

 

Centurion ZD CPA & Co.

(successor to Centurion ZD CPA Limited)

Hong Kong, China

September 9, 2021