As filed with the Securities and Exchange Commission on July 9, 2020
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
Kingsoft Cloud Holdings Limited
(Exact name of registrant as specified in its charter)
|Cayman Islands||Not Applicable|
|(State or other jurisdiction of
incorporation or organization)
Kingsoft Tower, No. 33, Xiao Ying West Road,
Beijing, 100085, the Peoples Republic of China +
86 10 6292 7777
(Address, Including Zip Code, and Telephone Number, Including Area Code, of registrants Principal Executive Offices)
2013 Share Option Scheme
2013 Share Award Scheme
(Full title of the plans)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
(Name, address and telephone number, including area code, of agent for service)
Chief Executive Officer
Kingsoft Cloud Holdings Limited
Kingsoft Tower, No. 33,
Xiao Ying West Road,
the Peoples Republic of China
+86 10 6292 7777
Li He, Esq.
James C. Lin, Esq.
Davis Polk & Wardwell LLP
c/o 18th Floor, The Hong Kong
3A Chater Road, Central
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(1)||
Ordinary shares, par value $0.001 per share
|134,746,000 (3) (6)||$0.0739 (3)||$9,957,729.40||$1,292.51|
Ordinary shares, par value $0.001 per share
|228,014,922 (4) (6)||$2.16 (4)||$492,512,231.52||$63,928.09|
Ordinary shares, par value $0.001 per share
|56,890,128 (5) (6)||$2.16 (5)||$122,882,676.48||$15,950.17|
The ordinary shares of Kingsoft Cloud Holdings Limited (the Registrant) registered hereunder are represented by the Registrants American depositary shares (ADSs), with each ADS representing 15 ordinary shares, par value $0.001 per share. The registrants ADSs issuable upon deposit of the ordinary shares have been registered under a separate registration statement on Form F-6 (333-237852).
Represents ordinary shares issuable upon exercise of options and pursuant to other awards granted under the 2013 Share Option Scheme (the Option Scheme) and 2013 Share Award Scheme (the Award Scheme, and together with the Option Scheme, the Plans) 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 ordinary shares which may be offered and issued to prevent dilution resulting from share splits, share dividends or similar transactions as provided in the Plans.
Represents ordinary shares which are issuable upon the exercise of outstanding options previously granted under the Option Scheme as of the date of this registration statement and the corresponding proposed maximum offering price per share represents the weighted average of the exercise price of options which have been already granted and are outstanding under the Option Scheme.
Represents ordinary shares granted under the Plans. 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 the average of the high and low prices for the Registrants ADSs as quoted on the Nasdaq on July 2, 2020.
Represents ordinary shares underlying the share awards to be granted pursuant to the Plans. 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 the average of the high and low prices for the Registrants ADSs as quoted on the Nasdaq on July 2, 2020.
Any ordinary shares covered by an award granted under the Plans (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 ordinary shares which may be issued under the Plan.
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 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.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and Exchange Commission (the Commission) by the Registrant are incorporated herein by reference.
(1) The Registrants prospectus filed with the Commission on May 11, 2020 pursuant to Rule 424(b)(4) under the Securities Act (Securities Act File No. 333-237726); and
(2) The description of the Registrants ordinary shares contained in the Registrants registration statement on Form 8-A under the Securities Exchange Act of 1934, as amended (the Exchange Act) filed on May 4, 2020, as modified by any amendment or report filed for the purpose of updating such description (Exchange Act File No. 001-39278).
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Cayman Islands law does not limit the extent to which a companys 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 or committing a crime. The Registrants amended and restated memorandum and articles of association provide for indemnification of officers and directors against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such officers and directors, other than by reason of such directors or officers own dishonesty, willful default or fraud as determined by a court of competent jurisdiction, in or about the conduct of the Registrants business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such directors or officers in defending (whether successfully or otherwise) any civil proceedings concerning the Registrant or its affairs in any court whether in the Cayman Islands or elsewhere.
Pursuant to the indemnification agreements, the form of which was filed as Exhibit 10.3 to the Registrants registration statement on Form F-1, as amended (File No. 333-237726), the Registrant has agreed to indemnify its directors and officers against, to the fullest extent permitted by applicable law, any and all expenses and liabilities actually and reasonably incurred by reason of such directors or officers corporate status.
The Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
ITEM 8. EXHIBITS
The Exhibits listed on the accompanying Exhibit Index are filed as a part of, or incorporated by reference into, this Registration Statement. (See Exhibit Index below).
ITEM 9. REQUIRED UNDERTAKINGS
The undersigned Registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
To include any prospectus required by Section 10(a)(3) of the Securities Act;
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; and
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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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 the Registration Statement.
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.
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 Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
|4.1||Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registrants registration statement on Form F-1 filed on April 17, 2020) (Securities Act File No. 333-237726)|
|4.2||Registrants Specimen Certificate for Ordinary Shares (incorporated herein by reference to Exhibit 4.2 to the Registrants registration statement on Form F-1 filed on April 17, 2020) (Securities Act File No. 333-237726)|
|4.3||Form of Deposit Agreement between the Registrant, the depositary and holders of the American Depositary Shares (incorporated herein by reference to Exhibit 4.3 to the Registrants registration statement on Form F-1 filed on May 4, 2020, as amended) (Securities Act File No. 333-237726)|
|5.1||Opinion of Conyers Dill & Pearman (filed herewith)|
|10.1||Share Option Scheme, as amended on June 27, 2013, May 20, 2015 and December 26, 2016 (incorporated herein by reference to Exhibit 10.1 to the Registrants registration statement on Form F-1 filed on April 17, 2020) (Securities Act File No. 333-237726)|
|10.2||Rules relating to the Share Award Scheme, as amended on January 9, 2015, March 3, 2016, June 8, 2016, December 7, 2018 and November 6, 2019 (incorporated herein by reference to Exhibit 10.2 to the Registrants registration statement on Form F-1 filed on April 17, 2020) (Securities Act File No. 333-237726)|
|23.1||Consent of Conyers Dill & Pearman (included in Exhibit 5.1).|
|23.2||Consent of Independent Registered Public Accounting Firm (filed herewith)|
|24.1||Power of Attorney (included on the signature page of this Registration Statement)|
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 the PRC, on July 9, 2020.
|Kingsoft Cloud Holdings Limited|
|Title:||Chief Executive Officer|
Each person whose signature appears below constitutes and appoints Yulin Wang and Haijian He, and each of them acting individually and without the other, 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, and each of them, 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 either of them individually, or their 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 by the following persons in the capacities indicated on July 9, 2020.
|Chairman of the Board of Directors|
|Vice Chairman of the Board of Directors|
|Director, Chief Executive Officer|
|Yulin Wang||(principal executive officer)|
|Chief Financial Officer|
(principal financial officer and principal accounting officer)
|Shou Zi Chew|
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Kingsoft Cloud Holdings Limited, has signed this registration statement or amendment thereto in New York on July 9, 2020.
Authorized U.S. Representative
Cogency Global Inc.
|Name: Colleen A. De Vries|
|Title: Senior Vice President|
9 July 2020
Doc Ref: PL/HL/KN/106226765v1
(852) 2842 9551
(852) 2842 9402
Kingsoft Cloud Holdings Limited
Cricket Square, Hutchins Drive
P.O. Box 2681, Grand Cayman
Re: Kingsoft Cloud Holdings Limited (the Company)
We have acted as special Cayman Islands legal counsel to the Company in connection with a registration statement on Form S-8, (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 under the U.S. Securities Act of 1933, as amended, (the Securities Act) of 419,651,050 ordinary shares of par value US$0.001 per share of the Company (the Ordinary Shares) issuable pursuant to the 2013 Share Option Scheme (the Option Scheme) and the 2013 Share Award Scheme (the Award Scheme and together with the Option Scheme, collectively the Option and Award Schemes).
For the purposes of giving this opinion, we have examined a copy of the Registration Statement and the copies of the Option and Award Schemes. We have also reviewed the amended and restated memorandum and articles of association of the Company adopted on 7 April, 2020 which became effective on 12 May, 2020 (the Amended M&A), written resolutions of the directors of the Company dated 22 February 2013, 27 February 2013 and 7 April 2020 and written resolutions of the members of the Company dated February 2013, 27 February 2013 and 7 April 2020 (the Resolutions), a Certificate of Good Standing issued by the Registrar of Companies in relation to the Company on 8 July 2020 (the Certificate Date) and 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.
We have assumed (a) 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; (b) 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; (c) the accuracy and completeness of all factual representations made in the Registration Statement the Option and Award Schemes and other documents reviewed by us; (d) 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; (e) 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; (f) that there is no provision of any award agreement, incentive share option, restricted shares or restricted share units or otherwise granted pursuant to the Option and Award Schemes which would have any implication in relation to the opinions expressed herein; (g) that upon issue of any Ordinary Shares, the Company will receive consideration for the full issue price thereof which shall be equal to at least the par value thereof, (h) that on the date of issuance of any of the Ordinary Shares, the Company will have sufficient authorised but unissued Ordinary Shares; (i) that on the date of issuing of any Ordinary Shares, the Company is able to pay its liabilities as they become due; and (j) the issue of the Ordinary Shares are made in accordance with the terms and conditions of the Option and Award Schemes.
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 Ordinary Shares by the Company pursuant to the Option and Award Schemes and is not to be relied upon in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion that:
The Company is duly incorporated and existing under the law 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 Law (the Law), a company is deemed to be in good standing if all fees and penalties under the Law have been paid and the Registrar of Companies has no knowledge that the Company is in default under the Law.
When issued and paid for as contemplated by the Option and Award Schemes, the Ordinary Shares will be 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. 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 are 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.
/s/ Conyers Dill & Pearman
Conyers Dill & Pearman
conyers.com | 2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2013 Share Option Scheme and 2013 Share Award Scheme of Kingsoft Cloud Holdings Limited of our report dated March 10, 2020 (except for Note 21, as to which the date is April 17, 2020), with respect to the consolidated financial statements of Kingsoft Cloud Holdings Limited included in its Registration Statement (Form F-1 No. 333-237726) and related Prospectus of Kingsoft Cloud Holdings Limited, filed with the Securities and Exchange Commission.
/s/ Ernst & Young Hua Ming LLP
Beijing, the Peoples Republic of China
July 9, 2020