As filed with the Securities and Exchange Commission on June 16, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Xunlei Limited
(Exact name of registrant as specified in its charter)
| Cayman Islands | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
3709 Baishi Road
Nanshan District, Shenzhen, 518000
The People’s Republic of China
(Address of Principal Executive Offices and Zip Code)
Amended and Restated 2020 Share Incentive Plan
(Full title of the plan)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
(800) 221-0102
(Name, address, including zip code, and 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 x | |
| 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. ¨
Copies to:
| Naijiang (Eric) Zhou Chief Financial Officer Xunlei Limited 3709 Baishi Road Nanshan District, Shenzhen, 518000 The People’s Republic of China +86-755-6111-1571 |
EXPLANATORY NOTE
Xunlei Limited (the “Registrant”) has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act to register 23,432,764 additional common shares reserved for issuance under the Amended and Restated 2020 Share Incentive Plan (the “Amended and Restated 2020 Plan”).
Pursuant to the Registration Statement on Form S-8 (File No. 333-257701) filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on July 6, 2021 (the “Prior Registration Statement”), the Registrant previously registered an aggregate of 23,128,436 common shares under the 2020 Share Incentive Plan.
In accordance with General Instruction E to Form S-8, the contents of the Prior Registration Statement are hereby incorporated by reference.
PART I
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 covered by the Amended and Restated 2020 Plan, as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference |
The following documents previously filed by Xunlei Limited (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference herein:
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of 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 |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel |
Not applicable.
| 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 directors and officers, 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, adopted by its shareholders on June 11, 2014 and effective conditional and immediately upon the completion of the Company's initial public offering of common shares represented by American Depositary Shares, provides that the Registrant shall indemnify its directors and officers out of the assets and funds of the Company against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such persons in connection with the execution or discharge of such person’s duties, powers, authorities or discretions as a director or officer of the Company, otherwise than by reason of such person's own dishonesty, actual fraud or willful default, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such person 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.
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Pursuant to the indemnification agreement, the form of which was filed as Exhibit 10.7 to the Registrant’s registration statement on Form F-1, as amended (File No. 333-196221), the Registrant has agreed to indemnify its directors and officers against certain liabilities and expenses incurred by such persons in connection with claims arising from their services as directors or officers of the Registrant.
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 |
Not applicable.
| 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. |
3
EXHIBIT INDEX
* Filed herewith.
4
Pursuant to the requirements of the 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 S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Shenzhen, China, on June 16, 2023.
| Xunlei Limited | |||
| By: | /s/Jinbo Li | ||
| Name: | Jinbo Li | ||
| Title: | Chairman of the Board and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, severally and not jointly, each of Jinbo Li and Naijiang (Eric) Zhou, with full power to act alone, as his or 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 or she 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, as amended, this Registration Statement has been signed by the following persons in the capacities on June 16, 2023.
| Signature | Title | |
| /s/Jinbo Li | Chairman of the Board and Chief Executive Officer | |
| Jinbo Li | (Principal Executive Officer) | |
| /s/Sean Shenglong Zou | Co-Founder and Director | |
| Sean Shenglong Zou | ||
| /s/Yubo Zhang | Director and President | |
| Yubo Zhang | ||
| /s/Peng Shi | Director | |
| Peng Shi | ||
| /s/Hui Duan | Director | |
| Hui Duan | ||
| /s/Jenny Wenjie Wu | Independent Director | |
| Jenny Wenjie Wu | ||
| /s/Ya Li | Independent Director | |
| Ya Li | ||
| /s/Naijiang (Eric) Zhou | Chief Financial Officer | |
| Naijiang (Eric) Zhou | (Principal Financial and Accounting Officer) | |
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 Xunlei Limited has signed this registration statement or amendment thereto in New York on June 16, 2023.
| Authorized U.S. Representative | ||
| By: | /s/ Colleen A. De Vries | |
| Name: Colleen A. De Vries, on behalf of Cogency Global Inc. | ||
| Title: Senior Vice President | ||
Exhibit 5.1
| Ref: | VSL/660874-000001/26133818v4 |
Xunlei Limited
3709 Baishi Road
Nanshan District, Shenzhen, 518000
People's Republic of China
16 June 2023
Dear Sirs
Xunlei 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 16 June 2023 (the "Registration Statement") relating to the registration under the United States Securities Act of 1933, as amended, (the "Securities Act") of 23,432,764 common shares, par value US$0.00025 per share (the "Shares"), issuable pursuant to the Amended and Restated 2020 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 eighth amended and restated memorandum of association and the seventh amended and restated articles of association of the Company adopted by special resolution passed on 11 June 2014 and effective conditional and immediately upon the completion of the Company's initial public offering of Shares represented by American Depositary Shares (the "Memorandum and Articles"), and the minutes of the meetings of the board of directors of the Company held on 30 June 2020, 13 March 2023, and 4 June 2023 (the resolutions set out in such minutes, 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. | The Shares to be issued by the Company and registered under the Registration Statement have been duly and validly authorized. |
| 2. | When issued and paid for in accordance with the terms of the Share Incentive Plan and in accordance with the Resolutions, and when appropriate entries are made in the register of members (shareholders) of the Company, the Shares will be 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 and in the absence of a contractual arrangement, or an obligation pursuant to the memorandum and articles of association, to the contrary, 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).
1
These opinions are subject to the qualification that under the Companies Act (As Revised) of the Cayman Islands (the "Companies Act"), the register of members of a Cayman Islands company is by statute regarded as prima facie evidence of any matters which the Companies Act 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, (c) where a document has been provided to us in draft or undated form, it will be duly executed, dated and unconditionally delivered in substantially the same form as the last version provided to us, (d) the Memorandum and Articles remain in full force and effect and are unamended, (e) the Resolutions were duly passed in the manner prescribed in the Memorandum and Articles and have not been amended, varied or revoked in any respect, (f) there is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out above, and (g) upon the issue of any Shares, the Company will receive consideration which shall be equal to at least the par value of such Shares.
This opinion letter is to and for the benefit solely of the addressee and may not be relied upon by any other person for any purpose.
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.
Yours faithfully
/s/ Maples and Calder (Hong Kong) LLP
Maples and Calder (Hong Kong) LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Xunlei Limited of our report dated April 26, 2023, relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Xunlei Limited's Annual Report on Form 20-F for the year ended December 31, 2022.
/s/PricewaterhouseCoopers Zhong Tian LLP
Shenzhen, the People’s Republic of China
June 16, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Xunlei Limited
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type |
Security Class Title | Fee Calculation Rule |
Amount Registered | Proposed Maximum Offering Price Per Share |
Maximum Aggregate Offering Price |
Fee Rate | Amount of Registration Fee |
| Equity | Common shares, $0.00025 par value per share (1) | Rule 457(c) and Rule 457(h) | 23,432,764(2) | US$0.3155(3) | US$7,393,037.04 | US$0.00011020 | US$814.71 |
| Total Offering Amounts | US$7,393,037.04 | US$814.71 | |||||
| Total Fee Offsets | - | ||||||
| Net Fee Due | US$814.71 |
| (1) | These shares may be represented by the Registrant’s American Depositary Shares, or ADSs, each of which represents five common shares. The Registrant’s ADSs issuable upon deposit of the common shares registered hereby have been registered under a separate registration statement on Form F-6 (333-196699). |
| (2) | Represents the additional amount of common shares issuable upon vesting or exercise of awards granted or to be granted under the Amended and Restated 2020 Share Incentive Plan, as amended (the “Amended and Restated 2020 Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares which may be offered and issued to prevent dilution from share splits, share dividends or similar transactions as provided in the Amended and Restated 2020 Plan. |
| (3) | The proposed maximum offering price per share, which is estimated solely for the purposes of calculating the registration fee under Rule 457(c) and Rule 457(h) 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 Global Select Market on June 12, 2023, which is within five (5) business days prior to the date of this Registration Statement, and adjusted for the common share-to-ADS ratio. |