Sec Form 13D Filing - Alibaba Group Holding Ltd filing for BEST Inc. (BEST) - 2020-06-03

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 3)*

BEST Inc.

(Name of Issuer)

Class A Ordinary Shares, par value US$0.01 per share

(Title of Class of Securities)

08653C106**

(CUSIP Number)

Timothy A. Steinert, Esq.
Alibaba Group Holding Limited
c/o Alibaba Group Services Limited
26/F, Tower One, Times Square
1 Matheson Street, Causeway Bay
Hong Kong
Telephone: +852 2215-5100

with copies to:

Peng Yu
Ropes & Gray
44th Floor, One Exchange Square
8 Connaught Place
Central, Hong Kong
+852 3664-6488
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 3, 2020

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

*                 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

**          This CUSIP number applies to the Issuer’s American Depositary Shares, evidenced by American Depositary Receipts, each representing one Class A Ordinary Share of the Issuer.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes)

1  The Reporting Persons are deemed to beneficially own 142,259,649 Class A ordinary shares, par value US$0.01 per share, of the Issuer (“Class A Ordinary Shares”) based on beneficial ownership of: (i) 10,000,000 American Depositary Shares (“ADSs”) representing a total of 10,000,000 Class A Ordinary Shares, (ii) 94,075,249 Class B ordinary shares, par value US$0.01 per share, of the Issuer (“Class B Ordinary Shares”), which are convertible into the same number of Class A Ordinary Shares at any time at the option of the holder thereof, (iii) US$100,000,000 1.75% Convertible Senior Notes Due 2024 (“2024 Convertible Notes”), which are convertible into 14,184,400 ADSs representing a total of 14,184,400 Class A Ordinary Shares at any time at the option of the holder thereof, and (iv) US$150,000,000 4.5% Convertible Senior Notes Due 2025 (“2025 Convertible Notes”), which will be convertible into 24,000,000 Class A Ordinary Shares (or in the form of ADSs) at any time after 30 consecutive trading days after May 27, 2020 at the option of the holder thereof, subject to the adjustment as provided under the 2025 Convertible Notes that if 125% of the volume-weighted average closing sale price per Class A Ordinary Share for 30 consecutive trading days after May 27, 2020 (“VWAP”) is lower than US$6.25, then the 2025 Convertible Notes will be convertible into an amount of Class A Ordinary Shares (or in the form of ADSs) equal to the quotient of US$150,000,000 divided by 125% of the VWAP.

2  This percentage is calculated based upon 382,908,101 total issued and outstanding Class A Ordinary Shares, as reported in the Issuer’s Form 20-F filed on April 17, 2020, assuming conversion of all 94,075,249 Class B Ordinary Shares held by the Reporting Persons into the same number of Class A Ordinary Shares, assuming conversion of all of the 2024 Convertible Notes held by the Reporting Persons into 14,184,400 ADSs representing the same amount of Class A Ordinary Shares, and assuming conversion of all of the 2025 Convertible Notes held by the Reporting Persons into 24,000,000 Class A Ordinary Shares (using US$6.25 as the conversion price based on the assumption that 125% of the VWAP is not lower than US$6.25).

3  This percentage is calculated based upon 430,698,799 ordinary shares of the Issuer issued and outstanding as reported in the Issuer’s Form 20-F filed on April 17, 2020, comprised of (i) 250,648,452 Class A Ordinary Shares, (ii) 94,075,249 Class B Ordinary Shares, (iii) 47,790,698 Class C ordinary shares, par value US$0.01 per share, of the Issuer (“Class C Ordinary Shares”), plus 14,184,400 ADSs representing the same amount of Class A Ordinary Shares into which the 2024 Convertible Notes held by the Reporting Persons can be converted, and plus 24,000,000 Class A Ordinary Shares into which the 2025 Convertible Notes held by the Reporting Persons can be converted, assuming the 125% of VWAP is not lower than US$6.25.

4  The Reporting Person is deemed to beneficially own 85,831,692 Class A Ordinary Shares based on beneficial ownership of: (i) 10,000,000 ADSs representing a total of 10,000,000 Class A Ordinary Shares and (ii) 75,831,692 Class B Ordinary Shares, which are convertible into the same number of Class A Ordinary Shares at any time at the option of the holder thereof. The 2024 Convertible Notes originally held by this Reporting Person were transferred to Alibaba.com Hong Kong Limited (which is an affiliate of this Reporting Person and is also a Reporting Person in this Amendment) on March 24, 2020.

5  This percentage is calculated based upon 326,480,144 total issued and outstanding Class A Ordinary Shares, as reported in the Issuer’s Form 20-F filed on April 17, 2020, assuming conversion of all 75,831,692 Class B Ordinary Shares held by the Reporting Person into the same number of Class A Ordinary Shares.

6  This percentage is calculated based upon 392,514,399 ordinary shares of the Issuer issued and outstanding as reported in the Issuer’s Form 20-F filed on April 17, 2020, comprised of (i) 250,648,452 Class A Ordinary Shares, (ii) 94,075,249 Class B Ordinary Shares, and (iii) 47,790,698 Class C Ordinary Shares.

7  The Reporting Person is deemed to beneficially own 38,184,400 Class A Ordinary Shares based on (i) US$100,000,000 2024 Convertible Notes, acquired by this Reporting Person from its affiliate, Alibaba Investment Limited on March 24, 2020, which are convertible into 14,184,400 ADSs representing the same amount of Class A Ordinary Shares at any time at the option of the holder thereof, and (ii) US$150,000,000 2025 Convertible Notes, which will be convertible into 24,000,000 Class A Ordinary Shares (or in the form of ADSs) at any time after the 30th trading day after May 27, 2020 at the option of the holder thereof, subject to the adjustment as provided under the 2025 Convertible Notes that if 125% of the VWAP is lower than US$6.25, then the 2025 Convertible Notes will be convertible into an amount of Class A Ordinary Shares (or in the form of ADSs) equal to the quotient of US$150,000,000 divided by 125% of the VWAP.

8  This percentage is calculated based upon 288,832,852 total issued and outstanding Class A Ordinary Shares, as reported in the Issuer’s Form 20-F filed on April 17, 2020, assuming conversion of all of the 2024 Convertible Notes held by the Reporting Person into 14,184,400 ADSs representing the same amount of Class A Ordinary Shares and assuming conversion of all of the 2025 Convertible Notes held by the Reporting Person into 24,000,000 Class A Ordinary Shares (using US$6.25 as the conversion price based on the assumption that 125% of the VWAP is not lower than US$6.25).

9  This percentage is calculated based upon 430,698,799 ordinary shares of the Issuer issued and outstanding as reported in the Issuer’s Form 20-F filed on April 17, 2020, comprised of (i) 250,648,452 Class A Ordinary Shares, (ii) 94,075,249 Class B Ordinary Shares, (iii) 47,790,698 Class C Ordinary Shares, plus 14,184,400 ADSs representing the same amount of Class A Ordinary Shares into which the 2024 Convertible Notes held by the Reporting Person can be converted, and plus 24,000,000 Class A Ordinary Shares into which the 2025 Convertible Notes held by the Reporting Person can be converted, assuming 125% of the VWAP is not lower than US$6.25.

10  The Reporting Person is deemed to beneficially own 18,243,557 Class A Ordinary Shares based on beneficial ownership of 18,243,557 Class B Ordinary Shares, which are convertible into the same number of Class A Ordinary Shares at any time at the option of the holder thereof.

11  This percentage is calculated based upon 268,892,009 total issued and outstanding Class A Ordinary Shares, as reported in the Issuer’s Form 20-F filed on April 17, 2020, assuming conversion of all 18,243,557 Class B Ordinary Shares held by the Reporting Person into the same number of Class A Ordinary Shares.

12  This percentage is calculated based upon 392,514,399 ordinary shares of the Issuer issued and outstanding as reported in the Issuer’s Form 20-F filed on April 17, 2020, comprised of (i) 250,648,452 Class A Ordinary Shares, (ii) 94,075,249 Class B Ordinary Shares, and (iii) 47,790,698 Class C Ordinary Shares.

13  The Reporting Person is deemed to beneficially own 18,243,557 Class A Ordinary Shares based on beneficial ownership of 18,243,557 Class B Ordinary Shares, which are convertible into the same number of Class A Ordinary Shares at any time at the option of the holder thereof.

14  This percentage is calculated based upon 268,892,009 total issued and outstanding Class A Ordinary Shares, as reported in the Issuer’s Form 20-F filed on April 17, 2020, assuming conversion of all 18,243,557 Class B Ordinary Shares held by the Reporting Person into the same number of Class A Ordinary Shares.

15  This percentage is calculated based upon 392,514,399 ordinary shares of the Issuer issued and outstanding as reported in the Issuer’s Form 20-F filed on April 17, 2020, comprised of (i) 250,648,452 Class A Ordinary Shares, (ii) 94,075,249 Class B Ordinary Shares, and (iii) 47,790,698 Class C Ordinary Shares.

16  The Reporting Person is deemed to beneficially own 18,243,557 Class A Ordinary Shares based on beneficial ownership of 18,243,557 Class B Ordinary Shares, which are convertible into the same number of Class A Ordinary Shares at any time at the option of the holder thereof.

17  This percentage is calculated based upon 268,892,009 total issued and outstanding Class A Ordinary Shares, as reported in the Issuer’s Form 20-F filed on April 17, 2020, assuming conversion of all 18,243,557 Class B Ordinary Shares held by the Reporting Person into the same number of Class A Ordinary Shares.

18  This percentage is calculated based upon 392,514,399 ordinary shares of the Issuer issued and outstanding as reported in the Issuer’s Form 20-F filed on April 17, 2020, comprised of (i) 250,648,452 Class A Ordinary Shares, (ii) 94,075,249 Class B Ordinary Shares, and (iii) 47,790,698 Class C Ordinary Shares.

This Amendment No. 3 to Schedule 13D (this “Amendment”) hereby amends and supplements the initial Schedule 13D filed with the U.S. Securities and Exchange Commission on September 29, 2017, as amended on October 19, 2017, and as further amended on September 19, 2019 (as so amended, the “Original Schedule 13D”, as amended and supplemented by this Amendment, this “Schedule 13D”), on behalf of each of (i) Alibaba Group Holding Limited, an exempted company incorporated under the laws of the Cayman Islands (“AGHL”), (ii) Alibaba Investment Limited, a company organized under the laws of the British Virgin Islands (“AIL”), (iii) Alibaba.com Hong Kong Limited, a company organized under the laws of Hong Kong (“AHKL”), which is a wholly-owned subsidiary of AGHL, (iv) Ali CN Investment Holding Limited, a company organized under the laws of the British Virgin Islands (“Ali CN”), which is a direct wholly-owned subsidiary of AGHL and an existing shareholder of Cainiao Smart Logistics Network Limited, an exempt company organized under the laws of the Cayman Islands (“Cainiao”), (v) Cainiao, and (vi) Cainiao Smart Logistics Investment Limited, a company organized under the laws of the British Virgin Islands, which is a direct wholly-owned subsidiary of Cainiao (“CIL”, together with AGHL, AIL, AHKL, Ali CN and Cainiao, the “Reporting Persons”). Except as amended and supplemented herein, the information set forth in the Original Schedule 13D remains unchanged, and capitalized terms used but not defined herein have the meanings assigned thereto in the Original Schedule 13D.

ITEM 2.                        IDENTITY AND BACKGROUND.

Item 2 of the Original Schedule 13D is hereby amended and replaced in its entirety as follows:

This Schedule 13D is filed on behalf of each of the Reporting Persons with respect to Class A Ordinary Shares, including certain Class A Ordinary Shares represented by ADSs. This Schedule 13D is filed jointly by the Reporting Persons pursuant to Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The agreement among the Reporting Persons relating to the joint filing of this Amendment is attached hereto as Exhibit 99.1. Exhibit 99.1 of the Original Schedule 13D is hereby amended and replaced in its entirety by Exhibit 99.1 hereof.

The business address of AGHL, AIL, AHKL and Ali CN is c/o Alibaba Group Services Limited, 26/F, Tower One, Times Square, 1 Matheson Street, Causeway Bay, Hong Kong. AGHL is a holding company which, through its subsidiaries and variable interest entities, operates leading online and mobile marketplaces in retail and wholesale trade, as well as provides cloud computing and other services. Each of AIL and Ali CN is a wholly-owned subsidiary of AGHL and principally engages in investment activities on behalf of AGHL. AHKL is a wholly-owned subsidiary of AGHL and principally engages in the provision of internet content, software and technology services, trading of information technology products, marketing and other group administrative services.

The business address of Cainiao and CIL is #B1, Xixi Shouzuo, No. 588 West Wen Yi Road, Xi Hu, Hangzhou, P.R. China 310000. Each of Cainiao and CIL is an indirect controlled subsidiary of AGHL. Through its subsidiaries and variable interest entities, Cainiao operates warehouses, express delivery stations and a logistics data platform that leverages the capacity and capabilities of logistics partners to fulfill transactions between merchants and consumers on online and mobile marketplaces, including online and mobile marketplaces operated by AGHL and its subsidiaries and variable interest entities. CIL is a wholly-owned subsidiary of Cainiao and principally engages in investment activities on behalf of Cainiao.

The name, business address, citizenship and present principal occupation or employment of each executive officer and each member of the board of directors of each Reporting Person are set forth on Schedule A-1, A-2, A-3, A-4, A-5 and A-6 respectively and are incorporated herein by reference.

During the last five years, none of the Reporti ng Persons nor, to the knowledge of each Reporting Person, any of its executive officers or members of its board of directors named in Schedule A-1, A-2, A-3, A-4, A-5 and A-6 hereof, as applicable, (a) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

ITEM 3.                        SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

Item 3 of the Original Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

On June 3, 2020, AHKL subscribed for and purchased US$150,000,000 of the Issuer’s 2025 Convertibles Notes, at US$100,000 per Note, for a total purchase price of US$150,000,000. The source of the funds used by AHKL to purchase the 2025 Convertible Notes was funds from its affiliates.

ITEM 5.                        INTEREST IN SECURITIES OF THE ISSUER.

Item 5 of the Original Schedule 13D is hereby amended and replaced in its entirety as follows:

(a)-(b) The responses of each Reporting Person to Rows (7) through (13) of the cover pages of this Schedule 13D are hereby incorporated by reference into this Item 5.

Except as disclosed in this Schedule 13D, none of the Reporting Persons nor, to the knowledge of each Reporting Person, any of its executive officers or members of its board of directors named in Schedule A-1, A-2, A-3, A-4, A-5 or A-6 hereof, as applicable, beneficially owns any Class A Ordinary Shares or has the right to acquire any Class A Ordinary Shares.

Except as disclosed in this Schedule 13D, none of the Reporting Persons presently has the power to vote or to direct the vote or to dispose or direct the disposition of any of the Class A Ordinary Shares which it may be deemed to beneficially own.

(c) The information set forth in Item 3 of this Schedule 13D is hereby incorporated by reference into this Item 5. Except as disclosed in this Schedule 13D, none of the Reporting Persons nor, to the knowledge of each Reporting Person, any of its executive officers or members of its board of directors named in Schedule A-1, A-2, A-3, A-4, A-5 or A-6 hereof, as applicable, has effected any transactions relating to the Class A Ordinary Shares during the past 60 days.

(d) To the best knowledge of the Reporting Persons, no person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities beneficially owned by the Reporting Persons identified in this Item 5.

(e) Not applicable.

ITEM 6.                        CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

Item 6 of the Original Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

Form of Assignment and Transfer

On March 24, 2020, pursuant to the Form of Assignment and Transfer by and between AIL and AHKL, AIL transferred the 2024 Convertible Notes to AHKL.

Convertible Note Purchase Agreement

On June 3, 2020, pursuant to the terms of the Convertible Note Purchase Agreement dated May 28, 2020 (the “CNPA”), AHKL subscribed for and purchased US$150,000,000 of the Issuer’s 2025 Convertibles Notes, at US$100,000 per Note, for a total purchase price of US$150,000,000.  The CNPA also provides, among the other things,

(i) within two years from June 3, 2020, Mr. Shao-Ning Johnny Chou shall not transfer any shares of the Issuer (other than up to 1,000,000 Class A Ordinary Shares) or convert any Class C Ordinary Shares into other class of shares of the Issuer, in each case, without the prior written consent of AHKL;

(ii) AHKL has rights of first refusal over any proposed transfer by Mr. Shao-Ning Johnny Chou of any shares of the Issuer within five years from June 3, 2020; and

(iii) AHKL has rights of Form F-3 registration and piggyback registration.

Convertible Note Instrument

On June 3, 2020, pursuant to the terms of the CNPA, AHKL entered into a Convertible Note Instrument with the Issuer (the “CNI”), representing AHKL’s purchase of US$150,000,000 of the Issuer’s 2025 Convertible Notes, at US$100,000 per Note. The CNI provides that, among the other things,

(i) the Noteholder (as defined therein) has the right to convert all or any portion of the 2025 Convertible Notes into Class A Ordinary Shares (or in the form of ADSs) at any time during the Conversion Period (as defined therein) in accordance with the following conversion rate: the number of Class A Ordinary Shares to be delivered upon conversion of US$100,000 shall initially be equal to US$100,000 divided by the lower of (i) the quotient of (a) 125% of the volume-weighted average closing sale price per ADS for 30 consecutive Trading Days (as defined therein) after May 27, 2020, divided by (b) the number of Class A Ordinary Shares then represented by one ADS, and (ii) US$6.25. Such initial conversion rate is subject to adjustment in accordance with the terms of the CNI; and

(ii) within a period of ninety (90) days starting from the third (3rd) anniversary of the date of the CNI, each Noteholder shall have the right, at its/his option, to require the Issuer to repurchase all or any portion of such Noteholder’s Notes (as defined therein) at a repurchase price that is equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest.

The description of the Form of Assignment and Transfer, CNPA and CNI contained herein do not purport to be complete and are qualified in their entirety by reference to Exhibits 99.2, 99.3 and 99.4 hereto, which exhibits are hereby incorporated by reference into this Item 6.

ITEM 7.        MATERIAL TO BE FILED AS EXHIBITS

Exhibit 99.1 of the Original Schedule 13D is hereby amended and replaced in its entirety by Exhibit 99.1 hereof. Item 7 of the Original Schedule 13D is further amended to include Exhibits 99.2, 99.3 and 99.4 hereof.