As filed with the Securities and Exchange Commission on September 9, 2011

Registration No. 333-       

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

ChinaCache International Holdings Ltd.

(Exact name of registrant as specified in its charter)

 

 

 

6/F, Block A, Galaxy Plaza

No. 10 Jiuxianqiao Road Middle, Chaoyang District

Beijing, 100015

People’s Republic of China

+86 10 6437-3399

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

2011 Share Incentive Plan

(Full title of the plan)

 

 

Law Debenture Corporate Services Inc.

400 Madison Avenue, 4th Floor

New York, New York 10017

(212) 750-6474

(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, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

 

Copies to:

 

Jackie You Kazmerzak Chief Financial Officer ChinaCache International Holdigns Ltd. 6/F, Block A, Galaxy Plaza No. 10 Jiuxianqiao Road Middle, Chaoyang District Beijing, 100015 People’s Republic of China +86 10 6437-3399

Z. Julie Gao, Esq. Skadden, Arps, Slate, Meagher & Flom LLP c/o 42/F, Edinburgh Tower, The Landmark 15 Queen’s Road, Central Hong Kong +852 3740-4700

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered (1)		Amount to be Registered (2)		Proposed Maximum Aggregate Offering Price Per Share			Proposed Maximum Aggregate Offering Price (3)			Amount of Registration Fee
Ordinary Shares, par value $0.0001 per share		16,602,320	(3)	$	0.41		$	6,806,951.20		$	790.29
Ordinary Shares, par value $0.0001 per share		5,397,680	(4)	$	0.40		$	2,159,072.00		$	250.67
Total		22,000,000		—			$	8,966,023.20		$	1,040.96

 

(1)	These shares may be represented by the Registrant’s American Depositary Shares, or ADSs, each of which represents 16 ordinary shares. The Registrants’ ADSs issuable upon deposit of the ordinary shares registered hereby have been registered under a separate registration statement on Form F-6 (333-169390).
(2)	Represents ordinary shares issuable upon exercise of options granted under the 2011 Share Incentive Plan (the “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 Plan. Any ordinary shares covered by an award granted under the Plan (or portion of an award) that terminates, expires or lapses for any reason will be deemed not to have been issued for purposes of determining the maximum aggregate number of ordinary shares that may be issued under the Plan.
(3)	The amount to be registered represents shares issuable upon exercise of outstanding options granted under the Plan and the corresponding proposed maximum offering price per share represents the exercise price of such outstanding options.
(4)	These shares are reserved for future award grants under the Plan, and 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 Registrant’s ADSs as listed on the Nasdaq Global Market on September 6, 2011.

 

 

 

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 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 ChinaCache International Holdings Ltd. (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference herein:

 

(a)                                                          The Registrant’s annual report on Form 20-F filed with the Commission on April 21, 2011;

 

(b)                                                         The Registrant’s reports on Form 6-K furnished on March 8, 2011, May 11, 2011 and August 17, 2011; and

 

(c)                                                          The description of the Registrant’s ordinary shares incorporated by reference in the Registrant’s registration statement on Form 8-A (File No. 001-34873) filed with the Commission on September 15, 2010, 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 (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 fifth amended and restated articles of association, adopted by its shareholders

 

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on September 7, 2010, provides that the Registrant shall indemnify its directors and officers against actions, costs, charges, losses, damages and expenses incurred by such persons in their capacity as such, except through their own fraud or dishonesty.

 

Pursuant to the indemnification agreement, the form of which was filed as Exhibit 10.4 to the Registrant’s registration statement on Form F-1, as amended (File No. 333-169288), 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 aforementioned agreement, 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

 

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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.

 

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SIGNATURES

 

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 September 9, 2011.

 

 

			ChinaCache International Holdings Ltd.
		By:	/s/ Song Wang
			Name:	Song Wang
			Title:	Chairman and Chief Executive Officer

 

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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 Song Wang and Jackie You Kazmerzak, 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, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Song Wang		Chairman and Chief Executive Officer		September 9, 2011
Song Wang		(principal executive officer)
/s/ Jackie You Kazmerzak		Chief Financial Officer		September 9, 2011
Jackie You Kazmerzak		(principal financial and accounting officer)
/s/ Jean Xiaohong Kou		Director and Senior Vice President		September 9, 2011
Jean Xiaohong Kou
/s/ Paul Jin-Hwee Choo		Director		September 9, 2011
Paul Jin-Hwee Choo
/s/ Duane Ziping Kuang		Director		September 9, 2011
Duane Ziping Kuang
/s/ Yunjie Liu		Director		September 9, 2011
Yunjie Liu
/s/ Ya-Qin Zhang		Director		September 9, 2011
Ya-Qin Zhang
/s/ Kathleen Chien		Director		September 9, 2011
Kathleen Chien

 

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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 ChinaCache International Holdings Ltd. has signed this registration statement or amendment thereto in New York on September 9, 2011.

 

 

			Authorized U.S. Representative
		By:	/s/ Diana Arias
			Name: Diana Arias, on behalf of Law Debenture Corporate Services Inc.
			Title: Senior Managing Officer

 

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EXHIBIT INDEX

 

Exhibit Number		Description
4.1		Fifth Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registrant’s registration statement on the Form F-1, filed with the Commission on September 9, 2010 (File No. 333-169288))
4.2		Registrant’s Specimen Certificate for Ordinary Shares (incorporated herein by reference to Exhibit 4.2 to the registration statement on Form F-1, as amended (File No. 333-169288))
4.3		Deposit Agreement among the Registrant, Citibank, N.A. as depositary, and holders and beneficial owners of American Depositary Shares evidenced by American Depositary Receipts issued thereunder (incorporated herein by reference to Exhibit 4.3 to the registration statement on Form S-8, filed with the Commission on March 21, 2011 (File No. 333-172962))
5.1*		Opinion of Conyers, Dill & Pearman, Cayman Islands counsel to the Registrant, regarding the legality of the ordinary shares being registered
10.1*		2011 Share Incentive Plan
23.1*		Consent of Ernst & Young Hua Ming, Independent Registered Public Accounting Firm
23.2*		Consent of Conyers, Dill & Pearman (included in Exhibit 5.1)
24.1*		Power of Attorney (included on signature page hereto)

 

*  Filed herewith.

 

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