GDS GDS Holdings Ltd

 

As Filed with the Securities and Exchange Commission on February 20, 2024

 

Registration No. 333-            

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

GDS Holdings 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 No.)

 

F4/F5, Building C, Sunland International,

No. 999 Zhouhai Road,

Pudong, Shanghai 200137

People's Republic of China

+86-21- 2029-2200

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

 

 

2016 Equity Incentive Plan

(Full title of the Plan)

 

 

Cogency Global Inc.

122 East 42^nd Street, 18^th Floor

New York, New York 10168

+1-212-947-7200

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

 

Daniel Newman Chief Financial Officer F4/F5, Building C, Sunland International, No. 999 Zhouhai Road, Pudong, Shanghai 200137 People's Republic of China +86-21- 2029-2200

Daniel Fertig, Esq. Simpson Thacher & Bartlett LLP c/o 35th Floor, ICBC Tower 3 Garden Road Central, Hong Kong +852-2514-7600

 

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. (Check one):

Large accelerated filer		x		Accelerated filer		o
Non-accelerated filer		o  (Do not check if a smaller reporting company)		Smaller reporting company		o
				Emerging growth company		o

 

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

 

 

 

EXPLANATORY NOTE

 

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 30,747,912 additional Class A ordinary shares, par value US$0.00005 per share (the “Class A Ordinary Shares”) of GDS Holdings Limited (the “Registrant”), which are reserved for issuance under the Registrant’s 2016 Equity Incentive Plan (the “2016 Plan”). These 30,747,912 additional Class A Ordinary Shares have been authorized under the 2016 Plan as amended and effective on August 6, 2020, the date of the approval by the shareholders at the annual general meeting, pursuant to the 2016 Plan’s evergreen provisions. These 30,747,912 additional Class A Ordinary Shares are of the same class as other securities for which registration statements on Form S-8 were filed with the Securities and Exchange Commission (the “Commission”) on November 25, 2016 (File No. 333-214800), August 12, 2020 (File No. 333-244736) and February 10, 2022 (File No. 333-262615) (the “Existing S-8 Registration Statements”), but were not registered under the Existing S-8 Registration Statements.

 

An aggregate of 118,552,448 Class A Ordinary Shares in the capital of the Registrant were previously registered for issuance under the 2016 Plan pursuant to the Existing S-8 Registration Statements. Pursuant to the General Instruction E to Form S-8, the contents of the Existing S-8 Registration Statements are incorporated by reference into this Registration Statement, except as otherwise set forth herein.

 

In accordance with the terms of the 2016 Plan, as amended, the total number of ordinary shares which may be issuable pursuant to awards under the 2016 Plan initially totaled 56,707,560 ordinary shares, provided, however, that the maximum number of unallocated ordinary shares which may be issuable pursuant to awards under the 2016 Plan shall be automatically increased on the first day of each fiscal year (i.e., January 1 of each calendar year) during which the Plan remains in effect to three percent (3%) of the then total issued and outstanding ordinary shares of the Registrant, if and whenever the unallocated ordinary shares which may be issuable pursuant to awards under the 2016 Plan account for less than one and half percent (1.5%) of the then total issued and outstanding Ordinary Shares of the Registrant.

 

PART II

 

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 Registrant’s registration statements on Form S-8 filed with the Commission on November 25, 2016 (File No. 333-214800), August 12, 2020 (File No. 333-244736) and February 10, 2022 (File No. 333-262615);

 

b.  The Registrant’s annual report on Form 20-F for the fiscal year ended December 31, 2022, filed with the Commission on April 4, 2023; and

 

c.   The description of the Registrant’s Class A Ordinary Shares contained in its Registration Statement on Form 8-A (Registration No. 001-37925) filed with the Commission on October 20, 2016 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which incorporates by reference the description of the Registrant’s Class A Ordinary Shares set forth in the Registrant’s Registration Statement on Form F-1 (Registration No. 333-213951), as amended, originally filed with the Commission on October 4, 2016, 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).

 

 

EXHIBIT INDEX

 

EXHIBIT NUMBER		DESCRIPTION
4.1		Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s current report on Form 6-K for June 2023 (File No. 001-37925) furnished to the Securities and Exchange Commission on June 5, 2023)
5.1*		Opinion of Conyers Dill & Pearman
10.1		GDS Holdings Limited 2016 Equity Incentive Plan (as amended on August 6, 2020) (incorporated by reference to Exhibit 4.30 to the Registrant’s annual report on Form 20-F for the fiscal year ended December 31, 2020 (File No. 001-37925) filed with the Securities and Exchange Commission on April 12, 2021)
23.1*		Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
23.2*		Consent of KPMG Huazhen LLP
24.1*		Powers of Attorney (included on the signature page in Part II of this Registration Statement)
107*		Filing Fee Table

 

*Filed herewith

 

 

SIGNATURES

 

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 Hong Kong, China on February 20, 2024.

 

	GDS Holdings Limited
	By:	/s/ William Wei Huang
		Name: William Wei Huang
		Title: Chairman and Chief Executive Officer

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint William Wei Huang and Daniel Newman, 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 indicated and on February 20, 2024.

 

Signature		Capacity
/s/ William Wei Huang		Chairman and Chief Executive Officer
William Wei Huang		(Principal Executive Officer)
/s/ Daniel Newman		Chief Financial Officer
Daniel Newman		(Principal Financial and Accounting Officer)
/s/ Sio Tat Hiang		Vice-chairman
Sio Tat Hiang
/s/ Satoshi Okada		Director
Satoshi Okada

 

 

/s/ Bruno Lopez		Director
Bruno Lopez
/s/ Liu Chee Ming		Director
Liu Chee Ming
/s/ Lim Ah Doo		Independent Director
Lim Ah Doo
/s/ Bin Yu		Independent Director
Bin Yu
/s/ Zulkifli Baharudin		Independent Director
Zulkifli Baharudin
/s/ Chang Sun		Independent Director
Chang Sun
/s/ Gary J. Wojtaszek		Director
Gary J. Wojtaszek
/s/ Judy Qing Ye		Independent Director
Judy Qing Ye

 

 

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 GDS Holdings Limited has signed this registration statement or amendment thereto in New York, New York on February 20, 2024.

 

	COGENCY GLOBAL INC. — Authorized Representative in the United States
	By:	/s/ Colleen A. De Vries
		On behalf of Cogency Global Inc.
		Name:	Colleen A. De Vries
		Title:	Senior Vice President

 

 

 

Exhibit 5.1

 

	CONYERS DILL & PEARMAN
	29th Floor
	One Exchange Square
	8 Connaught Place
	Central
	Hong Kong
	T +852 2524 7106 | F +852 2845 9268
	conyers.com

 

20 February 2024

Matter No.: 838126/109752626
852 2842 9530
Richard.Hall@conyers.com

 

GDS Holdings Limited

Cricket Square

Hutchins Drive, P.O. Box 2681

Grand Cayman KY1-1111

Cayman Islands

 

Dear Sirs,

 

Re: GDS 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 filed by the Company with the United States Securities and Exchange Commission (the “Commission”) on or about the date hereof (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). The Registration Statement relates to the registration of an aggregate of 30,747,912 additional Class A ordinary shares par value US$0.00005 per share (the “Plan Shares”) of the Company to be issued pursuant to the Company’s 2016 Equity Incentive Plan, as amended (the “2016 Plan” 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).

 

1.

DOCUMENTS REVIEWED

 

For the purposes of giving this opinion, we have examined the following documents:

 

1.1.

a copy of the Registration Statement; and

 

1.2.

a copy of the 2016 Plan.

 

We have also reviewed:

 

1.3.

a copy of the Memorandum and Articles of Association of the Company, each certified by the Secretary of the Company on 20 February 2024;

 

1.4.

a copy of the minutes of a meeting of the members of the Company held on 6 August 2020 (the “Member Resolutions”) and a copy of an extract of the minutes of a meeting of its directors held on 12 January 2024 (the “Director Resolutions” and together with the Member Resolutions, the "Resolutions");

 

1.5.

a copy of a Certificate of Good Standing issued by the Registrar of Companies in relation to the Company on 19 February 2024 (the “Certificate Date”); and

 

 

1.6.

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.

 

2.

ASSUMPTIONS

 

We have assumed:

 

2.1.

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;

 

2.2.

that where a document has been examined by us in draft form, it will be or has been executed 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;

 

2.3.

the accuracy and completeness of all factual representations made in the the Registration Statement, the 2016 Plan and the other documents reviewed by us;

 

2.4.

that the Director resolutions are a true and fair extract of the matters resolved at the meeting of Directors held on 12 January 2024 and 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;

 

2.5.

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;

 

2.6.

that upon issue of any Plan Shares by the Company the Company will receive consideration for the full issue price thereof which shall be equal to at least the par value thereof;

 

2.7.

the validity and binding effect under the laws of the United States of America of the Registration Statement and that the Registration Statement will be duly filed with the Commission and have become effective;

 

2.8.

that on the date of issuance of any Plan Shares, the Company will have sufficient authorised but unissued Class A ordinary shares par value US$0.00005 per share in its share capital; and

 

2.9.

that on the date of issuing any award or Plan Shares under the 2016 Plan the Company is and after issuing any award or Plan Shares under the 2016 Plan the Company will be able to pay its liabilities as they become due.

 

3.

QUALIFICATIONS

 

3.1.

We express no opinion as to the enforceability of any provision of the 2016 Plan which purports to fetter the statutory powers of the Company.

 

3.2.

We express no opinion with respect to the issuance of Plan Shares pursuant to any provision of the 2016 Plan that purports to obligate the Company to issue Plan Shares following the commencement of a winding up or liquidation.

 

3.3.

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 your benefit and use in connection with the matter described herein and is not to be relied upon by any other person, firm or entity or in respect of any other matter.

 

 

4.

OPINION

 

On the basis of and subject to the foregoing, we are of the opinion that:

 

4.1.

The Company is duly incorporated and existing under the laws 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 Act (“Act”), a company is deemed to be in good standing if all fees and penalties under the Act have been paid and the Registrar of Companies has no knowledge that the company is in default under the Act.

 

4.2.

When issued and paid for in accordance with the 2016 Plan, the Plan 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 with the Commission 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 come 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.

 

Yours faithfully,

 

/s/ Conyers Dill & Pearman

 

Conyers Dill & Pearman

 

 

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our report dated April 4, 2023, with respect to the consolidated financial statements of GDS Holdings Limited, and the effectiveness of internal control over financial reporting, incorporated herein by reference.

 

/s/ KPMG Huazhen LLP

Shanghai, China

February 20, 2024

 

 

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

GDS Holdings 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(1)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Class A ordinary shares, par value US$0.00005 per share(2)	Other(3)	30,747,912  shares(4)	US$0.74(3)	US$22,753,454.88	0.00014760	US$3,358.41
Total Offering Amounts					US$22,753,454.88		US$3,358.41
Total Fee Offsets							—
Net Fee Due							US$3,358.41

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, the registration statement of which this exhibit 107 is a part includes an indeterminate number of additional Class A ordinary shares, par value US$0.00005 per share (the “Class A Ordinary Shares”) of GDS Holdings Limited (the “Registrant”), which may be offered and issued under the Registrant’s 2016 Equity Incentive Plan (the “2016 Plan”) to prevent dilution from stock splits, stock dividends or similar transactions.

 

(2)

These Class A Ordinary Shares may be represented by the Registrant’s American depositary shares (“ADSs”), each of which represents eight Class A Ordinary Shares. ADSs issuable upon deposit of the securities registered hereby have been registered under separate registration statements on Form F-6 (Registration No. 333-214177, Registration No. 333-235363, Registration No. 333-249704 and Registration No. 333-271499).

 

(3)

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 Registrant’s ADSs as reported on the Nasdaq Global Market on February 13, 2024 divided by eight, the then Class A Ordinary Share-to-ADS ratio.

 

(4)

An additional 30,747,912 Class A Ordinary Shares are being registered on the registration statement of which this exhibit 107 is a part to cover the additional Class A Ordinary Shares that may be issued under the 2016 Plan, as amended on August 6, 2020, which were not previously registered under the Registrant’s registration statements on Form S-8, as filed with the Securities and Exchange Commission on November 25, 2016 (File No. 333-214800), August 12, 2020 (File No. 333-244736) and February 10, 2022 (File No. 333-262615).

 

 

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