As Filed with the Securities and Exchange Commission on June 21, 2022
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
Incorporation or Organization)
No. 8 Songgang Road, Changxing Street
Cencun, Tianhe District, Guangzhou
Peoples Republic of China
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Second Amended and Restated 2019 Equity Incentive Plan
(Full title of the Plan)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, N.Y. 10168
+1 (800) 221-0102
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Hongdi Brian Gu
Cencun, Tianhe District, Guangzhou
Peoples Republic of China
Yi Gao, Esq.
Simpson Thacher & Bartlett LLP
c/o 35th Floor, ICBC Tower
3 Garden Road
Central, Hong Kong
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
|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. ☐
This registration statement on Form S-8 (Registration Statement) is being filed pursuant to the General Instruction E to Form S-8 for the purpose of registering an aggregate of 20,000,000 additional Class A ordinary shares, par value US$0.00001 per share (the Class A Ordinary Shares) of XPeng Inc. (the Registrant), which are reserved for issuance under the Registrants Second Amended and Restated 2019 Equity Incentive Plan (the 2019 Plan). These 20,000,000 additional Class A Ordinary Shares are of the same class as other securities for which a registration statement on Form S-8 was filed with the Securities and Exchange Commission (the Commission) on December 29, 2020 (File No. 333-251792) (the Existing S-8 Registration Statement), but were not registered under the Existing S-8 Registration Statement. An aggregate of 3,000,000 Class A Ordinary Shares in the capital of the Registrant were previously registered for issuance under the 2019 Plan pursuant to the Existing S-8 Registration Statement. Pursuant to the General Instruction E to Form S-8, the contents of the Existing S-8 Registration Statement are incorporated by reference into this Registration Statement, except as otherwise set forth herein.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Commission are incorporated by reference herein:
a. The Registrants annual report on Form 20-F for the fiscal year ended December 31, 2021, filed with the Commission on April 28, 2022 (File No. 001-39466); and
b. The description of the Registrants Class A Ordinary Shares contained in its Registration Statement on Form 8-A (Registration No. 001-39466) filed with the Commission on August 21, 2020 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the Exchange Act), which incorporates by reference the description of the Registrants Class A Ordinary Shares set forth in the Registrants Registration Statement on Form F-1 (Registration No. 333-242283), as amended, initially filed with the Commission on August 7, 2020, including any amendments or reports filed for the purpose of updating such description.
All documents filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into 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 other subsequently filed document which also is or is 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 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).
|Eighth Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.1 to the current report on Form 6-K (File No. 001-39466), previously furnished with the Securities and Exchange Commission on December 9, 2021)
|Opinion of Harney Westwood & Riegels
|Second Amended and Restated 2019 Equity Incentive Plan (incorporated herein by reference to Exhibit 4.17 of the Registrants annual report on Form 20-F for the fiscal year ended December 31, 2021 filed with the Securities and Exchange Commission on April 28, 2022 (File No. 001-39466))
|Consent of Harney Westwood & Riegels (included in Exhibit 5.1)
|Consent of PricewaterhouseCoopers Zhong Tian LLP
|Powers of Attorney (included on the signature page in Part II of this Registration Statement)
|Filing Fee Table
Pursuant to the requirements of the Securities Act, 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 Guangzhou, China on June 21, 2022.
|Name: Xiaopeng He
|Title: Chairman and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Xiaopeng He and Heng Xia, and each of them singly, as his or her true and lawful attorneys-in-fact and agents, each 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, as amended, and all post-effective amendments thereto and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange 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 connection therewith 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 any of them, 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 and on the dates indicated.
Chairman and Chief Executive Officer
(principal executive officer)
|June 21, 2022
|Director and President
|June 21, 2022
|June 21, 2022
|June 21, 2022
|June 21, 2022
|June 21, 2022
|June 21, 2022
|June 21, 2022
|June 21, 2022
Vice President of Finance and Accounting
(principal financial and accounting officer)
|June 21, 2022
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 XPeng Inc. has signed this registration statement or amendment thereto in New York, New York on June 21, 2022.
|US Authorized Representative
|Cogency Global Inc.
|Name: Colleen A. De Vries
|Title: Senior Vice President
Harney Westwood & Riegels
3501 The Center
99 Queens Road Central
Tel: +852 5806 7800
Fax: +852 5806 7810
21 June 2022
4th Floor, Harbour Place, 103 South Church Street
P.O. Box 10240, Grand Cayman KY1-1002
Dear Sir or Madam
XPeng Inc. (the Company)
We are lawyers qualified to practise in the Cayman Islands and have acted as Cayman Islands legal advisers to the Company in connection with the Companys registration statement on Form S-8 filed with the Securities and Exchange Commission (the Commission) under the United States Securities Act of 1933, as amended (the Securities Act) (the Registration Statement), relating to the offering by the Company of American depositary shares representing certain Class A ordinary shares of par value US$0.00001 per share of the Company (the Shares).
We are furnishing this opinion as Exhibit 5.1 to the Registration Statement.
For the purposes of giving this opinion, we have examined the Corporate Documents (as defined in Schedule 1) and the Registration Statement. We have not examined any other documents, official or corporate records or external or internal registers and have not undertaken or been instructed to undertake any further enquiry or due diligence in relation to the transaction which is the subject of this opinion.
In giving this opinion we have relied upon the assumptions set out in Schedule 2 which we have not independently verified.
Based solely upon the foregoing examinations and assumptions and upon such searches as we have conducted and having regard to legal considerations which we deem relevant, and subject to the qualifications set out in Schedule 3, we are of the opinion that under the laws of the Cayman Islands:
Existence and Good Standing. The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing under the laws of the Cayman Islands.
Authorised Share Capital. Based on our review of the M&A (as defined in Schedule 1), the authorized share capital of the Company is US$100,000 consisting of 10,000,000,000 shares comprising (i) 9,250,000,000 Class A Ordinary Shares of a par value of US$0.00001 each (limited voting) and (ii) 750,000,000 Class B Ordinary Shares of a par value of US$0.00001 each.
Resident Partners: M Chu | I Clark | JP Engwirda | Y Fan | A Johnstone
P Kay | MW Kwok | IN Mann | R Ng | ATC Ridgers | PJ Sephton
Jersey legal services are provided through a referral arrangement with Harneys (Jersey) which is an independently owned and controlled Jersey law firm.
Anguilla | Bermuda | British Virgin Islands | Cayman Islands
Cyprus | Hong Kong | Jersey | London | Luxembourg
Montevideo | São Paulo | Shanghai | Singapore
Valid Issuance of Shares. The issue and allotment of the Shares as contemplated by the Registration Statement have been duly authorised and, when allotted, issued and fully paid for in accordance with the Registration Statement, and when name of the shareholder is entered in the register of members of the Company, the Shares will be validly issued, allotted and fully paid and there will be no further obligation on the holder of any of the Shares to make any further payment to the Company in respect of such Shares.
This opinion is confined to the matters expressly opined on herein and given on the basis of the laws of the Cayman Islands as they are in force and applied by the Cayman Islands courts at the date of this opinion. We have made no investigation of, and express no opinion on, the laws of any other jurisdiction. Except as specifically stated herein, we express no opinion as to matters of fact.
In connection with the above opinion, we hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act, as amended, or the Rules and Regulations of the Commission thereunder.
This opinion is limited to the matters referred to herein and shall not be construed as extending to any other matter or document not referred to herein.
This opinion shall be construed in accordance with the laws of the Cayman Islands.
|/s/ Harney Westwood & Riegels
|Harney Westwood & Riegels
List of Documents and Records Examined
The certificate of incorporation of the Company dated 27 December 2018;
The eighth amended and restated memorandum and articles of association of the company as adopted by a special resolution passed on 8 December 2021 (the M&A);
The register of members and register of directors of the Company provided to us on 19 May 2022;
A certificate of good standing dated 30 May 2022 in respect of the Company, issued by the Registrar of Companies in the Cayman Islands (the Certificate of Good Standing);
A copy of executed written resolutions of the directors of the Company dated 28 June 2020;
A copy of executed written resolutions of the directors of the Company dated 20 August 2020 and a copy of executed written resolutions of the members of the Company dated 20 August 2020; and
A copy of the minutes of a meeting of the directors of the Company dated 30 November 2020 (the November Resolutions, together with item 5 and 6 above, the Resolutions);
Copies of 1-7 above have been provided to us by the Companys registered office in the Cayman Islands (together the Corporate Documents)
The Registration Statement.
Authenticity of Documents. Copy documents or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals. All original Corporate Documents are authentic, all signatures, initials and seals are genuine, all copies of the Registration Statement are true and correct copies and the Registration Statement conform in every material respect to the latest drafts of the same produced to us and, where the Registration Statement has been provided to us in successive drafts marked-up to indicate changes to such documents, all such changes have been so indicated.
Corporate Documents. All matters required by law to be recorded in the Corporate Documents are so recorded, and all corporate minutes, resolutions, certificates, documents and records which we have reviewed are accurate and complete, and all facts expressed in or implied thereby are accurate and complete as at the date of the passing of the Resolutions.
Constitutional Documents. The M&A remain in full force and effect and are otherwise unamended.
Conversion. The conversion of any shares in the capital of the Company will be effected via legally available means under Cayman law.
No Steps to Wind-up. The directors and shareholders of the Company have not taken any steps to appoint a liquidator of the Company and no receiver has been appointed over any of the Companys property or assets.
Resolutions. The Resolutions (save for the November Resolutions) have been duly executed (and where by a corporate entity such execution has been duly authorised if so required) by or on behalf of each director, or by or on behalf of each shareholder in respect of the shareholder resolutions, and the signatures and initials thereon are those of a person or persons in whose name the Resolutions have been expressed to be signed. The November Resolutions were duly adopted at duly convened meetings of the board of directors and such meeting were held and conducted in accordance with the M&A. The Resolutions remain in full force and effect.
Unseen Documents. Save for the Corporate Documents provided to us there are no resolutions, agreements, documents or arrangements which materially affect, amend or vary the transactions envisaged in the Registration Statement. There is no contractual prohibition (other than as arising under Cayman Islands law) binding on the Company prohibiting it from issuing and allotting the Shares.
We express no opinion in relation to provisions making reference to foreign statutes in the Registration Statement.
Except as specifically stated herein, we make no comment with respect to any representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion or otherwise with respect to the commercial terms of the transactions the subject of this opinion.
Our opinion as to good standing is based solely upon receipt of the Certificate of Good Standing. The Company shall be deemed to be in good standing under section 200A of the Companies Act (as amended) of the Cayman Islands (the Companies Act) on the date of issue of the certificate if all fees and penalties under the Companies Act have been paid and the Registrar of Companies in the Cayman Islands has no knowledge that the Company is in default under the Companies Act.
We have undertaken no enquiry and express no view as to the compliance of the Company with the International Tax Co-operation (Economic Substance) Act (2021 Revision).
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of XPeng Inc. of our report dated April 28, 2022 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in XPeng Inc.s Annual Report on Form 20-F for the year ended December 31, 2021.
/s/ PricewaterhouseCoopers Zhong Tian LLP
Guangzhou, the Peoples Republic of China
June 21, 2022
Calculation of Filing Fee Tables
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Offering Price Per
|Class A ordinary shares, par value US$0.00001 per share(2)
|Total Offering Amounts
|Total Fee Offsets
|Net Fee Due
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, the registration statement to which this exhibit 107 is a part includes an indeterminate number of additional Class A ordinary shares, par value US$0.00001 (the Class A Ordinary Shares) of the Registrant, which may be offered and issued under the Second Amended and Restated 2019 Equity Incentive Plan, as amended (the 2019 Plan), to prevent dilution from stock splits, stock dividends or similar transactions.
These Class A Ordinary Shares may be represented by the Registrants American depositary shares (ADSs), each of which represents two Class A Ordinary Shares. ADSs issuable upon deposit of the securities registered hereby have been registered under separate registration statements on Form F-6 dated December 9, 2020 (Registration No. 333-251204) and May 14, 2021 (Registration No. 333-256151).
Estimated in accordance with Rule 457(c) and (h) solely for the purpose of calculating the registration fee based on the average of the high and low prices of the Registrants ADSs as reported on the New York Stock Exchange on June 14, 2022 divided by two, the then Class A Ordinary Share-to-ADS ratio.
An additional 20,000,000 Class A Ordinary Shares are being registered on the registration statement to which this exhibit 107 is a part to cover the additional Class A Ordinary Shares that may be issued under the 2019 Plan, which were not previously registered under the Registrants registration statement on Form S-8, as filed with the Securities and Exchange Commission on December 29, 2020 (File No. 333-251792).