As filed with the Securities and Exchange Commission on March 22, 2019
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of
9F, Ruihai Building, No. 21 Yangfangdian Road
Beijing 100038, People’s Republic of China
(Address, including zip code, and telephone
number, including area code, of registrant’s principal
Share Incentive Plan
(Full title of the Plan)
Cogency Global Inc.
10 East, 40th Street, 10th Floor
New York, NY 10016
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Haidian District, Beijing 100038
People’s Republic of China
Dan Ouyang, Esq.
Wilson Sonsini Goodrich & Rosati
Unit 2901, 29F, Tower C, Beijing Yintai Centre
No. 2 Jianguomenwai Avenue
Chaoyang District, Beijing 100022
People’s Republic of China
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
x (Do not check if a smaller reporting company)
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.||o|
Calculation of Registration Fee
|Title of Securities to be Registered||Amount to be Registered(1)||Proposed Maximum Offering Price Per Share||
Amount of Registration
|Class A ordinary shares, par value $0.0001 per share(2)||38,723,321(3)||US$1.5675 (4)||US$60,698,806||US$7,357|
|(1)||Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement includes an indeterminate number of additional shares of TuanChe Limited (the “Company” or “Registrant”), which may be offered and issued to prevent dilution from share splits, share dividends or similar transactions as provided in the Share Incentive Plan (the “Plan”).|
|(2)||These Class A ordinary shares may be represented by the Registrant’s ADSs, each of which represents four Class A ordinary shares. The Registrant’s ADSs issuable upon deposit of the Class A ordinary shares registered hereby have been registered under a separate registration statement on Form F-6 (Registration No.: 333-227941).|
|(3)||Represents Class A ordinary shares issuable for awards under the Plan.|
|(4)||The corresponding 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 Registrant’s ADSs as quoted on the NASDAQ on March 20, 2019.|
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.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the Commission are incorporated by reference herein:
|(a)||The Registrant’s prospectus, dated November 19, 2018 and filed with the Commission on November 21, 2018 pursuant to Rule 424(b)(4) under the Securities Act, which includes audited financial statements for the fiscal year ended December 31, 2017 (File No. 333-227940); and|
|(b)||The description of the Registrant’s Class A ordinary shares incorporated by reference in the Registrant’s registration statement on Form 8-A (File No. 001-38737) filed with the Commission on November 7, 2018, including any amendment and report subsequently filed for the purpose of updating that description.|
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
Item 5. Interests of Named Experts and Counsel
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 civil fraud or the consequences of committing a crime. The Registrant’s seventh amended and restated articles of association provide that the Registrant shall indemnify each of its directors and officers against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such directors or officer, other than by reason of such person’s dishonesty, willful default or fraud, in or about the conduct of our company’s 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 director or officer in defending (whether successfully or otherwise) any civil proceedings concerning our company 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 10.2 to the Registrant’s registration statement on Form F-1, as amended (File No. 333-227940), the Registrant has agreed to indemnify its directors and executive officers against certain liabilities and expenses incurred by such persons in connection with claims made by reason of their being such a director or officer.
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.
The Registrant also maintains a directors and officers liability insurance policy for its directors and officers.
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
See the Index to Exhibits 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.|
|4.1||Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.2 to the registration statement on Form F-1, as amended (File No. 333-227940))|
|4.2||Registrant’s Specimen Certificate for Class A ordinary shares (incorporated herein by reference to Exhibit 4.2 to the registration statement on Form F-1, as amended (File No. 333-227940))|
|5.1*||Opinion of Maples and Calder (Hong Kong) LLP, regarding the legality of the Class A ordinary shares being registered|
|10.1||Share Incentive Plan (incorporated herein by reference to Exhibit 10.8 to the registration statement on Form F-1, as amended (File No. 333-227940))|
|23.1*||Consent of Pricewaterhouse Coopers|
|23.2*||Consent of Maples and Calder (Hong Kong) LLP (included in Exhibit 5.1)|
|24.1*||Powers of Attorney (included on signature page hereto)|
* Filed herewith.
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 Beijing, China, on March 22, 2019.
|By:||/s/ Wei Wen|
|Name: Wei Wen|
|Title: Chief Executive Officer|
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, severally and not jointly, each of Mr. Wei Wen and Mr. Jianchen Sun, with full power to act alone, as his/her true and lawful attorney-in-fact, with the power of substitution, for and in such person’s 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 each said attorney-in-fact 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 could do in person, hereby ratifying and confirming all that each said attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on March 22, 2019 in the capacities and on the dates indicated.
|/s/ Wei Wen||Chairman and Chief Executive Officer|
|Wei Wen||(principal executive officer)|
|/s/ Jianchen Sun||Director|
|/s/ Hongchuan Thor||Director|
|/s/ Yaping Yao||Director|
|/s/ Yang Zhao||Director|
/s/ Yu Long
/s/ Zhishuo Liu
/s/ Wendy Hayes
|/s/ Zhihai Mao||Chief Financial Officer|
|Zhihai Mao||(principal financial and accounting officer)|
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 TuanChe Limited has signed this registration statement or amendment thereto in New York on March 22, 2019.
|COGENCY GLOBAL INC.|
|By:||/s/ Chiang Sheung Lin|
|Name: Chiang Sheung Lin|
|Title: Assistant Secretary|
9F, Ruihai Building, No. 21 Yangfangdian Road
Haidian District, Beijing 100038
People's Republic of China
22 March 2019
TuanChe Limited (the "Company")
We have acted as Cayman Islands legal counsel to the Company in connection with a registration statement on Form S-8 to be filed with the Securities and Exchange Commission (the "Commission") on 22 March 2019 (the "Registration Statement") relating to the registration under the United States Securities Act of 1933, as amended, (the "Securities Act") of Class A ordinary shares, par value US$0.0001 per share (the "Shares"), issuable pursuant to the Share Incentive Plan of the Company (the "Share Incentive Plan").
For the purposes of giving this opinion, we have examined copies of the Registration Statement and the Share Incentive Plan. We have also reviewed copies of the seventh amended and restated memorandum and articles of association of the Company adopted by special resolution passed on 19 October 2018 and effective immediately prior to the completion of the Company's initial public offering of American Depositary Shares representing its Shares (the "Memorandum and Articles"), the written resolutions of the board of directors of the Company dated 13 June 2018 and 23 January 2019, and the written resolutions of the shareholders of the Company dated 13 June 2018 (together, the "Resolutions").
Based upon, and subject to, the assumptions and qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
|1.||Assuming that the Shares have been issued and paid for in accordance with the terms of the Share Incentive Plan and in accordance with the Resolutions and that appropriate entries are made in the register of members (shareholders) of the Company, the Shares issued by the Company and registered under the Registration Statement (i) have been duly and validly authorised; and (ii) is validly issued, fully paid and non-assessable.|
In this opinion letter, the phrase "non-assessable" means, with respect to the issuance of Shares, that a shareholder shall not, in respect of the relevant Shares, have any obligation to make further contributions to the Company's assets (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil).
These opinions are subject to the qualification that under the Companies Law (2018 Revision) of the Cayman Islands, the register of members of a Cayman Islands company is by statute regarded as prima facie evidence of any matters which the Companies Law (2018 Revision) directs or authorises to be inserted therein. A third party interest in the shares in question would not appear. An entry in the register of members may yield to a court order for rectification (for example, in the event of fraud or manifest error).
These opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations.
We have also relied upon the assumptions, which we have not independently verified, that (a) all signatures, initials and seals are genuine, (b) copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, and (c) upon the issue of any Shares, the consideration received by the Company shall be not less than the par value of such Shares.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any amendments thereto. In giving such consent, we do not consider that we are “experts” within the meaning of such term as used in the Securities Act, or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.
/s/ Maples and Calder (Hong Kong) LLP
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of TuanChe Limited of our report dated July 31, 2018 relating to the financial statements, which appears in TuanChe Limited's Registration Statement on Form F-1 (File No. 333-227940) dated November 19, 2018.
/s/ PricewaterhouseCoopers Zhong Tian LLP
Beijing, the People’s Republic of China
March 22, 2019