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As filed with the Securities and Exchange Commission on July 10, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LDK Solar Co., Ltd.
(Exact name of registrant as specified in its charter)
Not Applicable
(Translation of registrant’s name into English)
| Cayman Islands | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
High-Tech Industrial Park, Xinyu City
Jiangxi Province 338032, People’s Republic of China
(86) 790 666-8000
(Address and telephone number of registrant’s principal executive office)
Law Debenture Corporate Services Inc.
400 Madison Avenue, 4th Floor, New York, New York 10017
212-750-6474
(Name, address, and telephone number of agent for service)
Copies to:
Huanting Timothy Li, Esq.
Sidley Austin LLP
Level 39, Two International Finance Centre
8 Finance Street, Central, Hong Kong
(852) 2509-7888
Approximate date of commencement of proposed sale to the public:From time to time after the effective date of this registration statement, subject to market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box ¨.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, please check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Securities and Exchange Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered(1) | Proposed offering price(3)(4) | Amount of registration fee(4) | ||
Ordinary shares, par value $0.10 per share(2) | — | — | ||
Preferred shares | — | — | ||
Warrants | — | — | ||
Stock purchase contracts | — | — | ||
Equity-linked securities | — | — | ||
Total | $80,000,000 | $9,168 | ||
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| (1) | Includes (i) securities initially offered and sold outside the United States that may be resold from time to time in the United States either as part of their distribution or within 40 days after the later of the effective date of this registration statement and the date the securities are first bona fide offered to the public and (ii) securities that may be purchased by the underwriters pursuant to an over-allotment option. These securities are not being registered for the purposes of sales outside the United States. |
| (2) | American depositary shares issuable upon deposit of the ordinary shares registered hereby have been or will be registered under separate registration statements on Form F-6 (Registration Nos. 333-142899 and 333-171862), each as amended. Each American depositary share represents one ordinary share. |
| (3) | The proposed maximum aggregate offering price for each class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of securities pursuant to General Instruction II. C. of Form F-3 under the Securities Act of 1933, as amended. |
| (4) | Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(o) of Regulation C under the Securities Act of 1933, as amended. |
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall hereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to such Section 8(a), may determine.
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PROSPECTUS
LDK Solar Co., Ltd.
Ordinary Shares
Preferred Shares
Warrants
Stock Purchase Contracts
Equity-linked Securities
We may offer and sell ordinary shares, including ordinary shares represented by American depositary shares, or ADSs, preferred shares, warrants, stock purchase contracts or equity-linked securities in any combination from time to time in one or more offerings, at prices and on terms described in one or more supplements to this prospectus. In addition, this prospectus may be used to offer securities for the account of persons other than us. Each time we or any selling security holder sell securities, we will provide a supplement to this prospectus that contains specific information about the offering and the terms of the securities. The supplement may also add, update or change information contained in this prospectus. We may also authorize one or more free writing prospectuses to be provided in connection with a specific offering.
Our ADSs are listed on the New York Stock Exchange under the symbol “LDK.” Each ADS represents one ordinary share, par value $0.10 each.
Investing in our securities involves risks. You should read the “Risk Factors” section contained in the applicable prospectus supplement, any related free writing prospectus and the documents we incorporate by reference before investing in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or completeness of this prospectus, including any prospectus supplement, free writing prospectus and documents incorporated by reference. Any representation to the contrary is a criminal offense.
We or any selling security holder may sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to investors, or through a combination of these methods, on a continuous or delayed basis. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names, and any applicable purchase price, fee, commission or discount arrangements between or among them, will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
The date of this prospectus is July 10, 2012.
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Before you invest in any of our securities, you should carefully read this prospectus and any prospectus supplement, together with the additional information described in the sections entitled “Where You Can Find Additional Information About Us” and “Incorporation of Documents by Reference” in this prospectus.
This prospectus is part of a registration statement on Form F-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a shelf registration process permitted under the Securities Act of 1933, as amended, or the Securities Act. By using a shelf registration statement, we or any selling security holder may sell any of our securities from time to time and in one or more offerings. Each time we or any selling security holder sell securities, we may provide a supplement to this prospectus that contains specific information about the securities being offered and the specific terms of that offering. The supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the prospectus supplement.
You should rely only on the information contained or incorporated by reference in this prospectus, in any applicable prospectus supplement or any related free writing prospectus that we may authorize to be delivered to you. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, the applicable supplement to this prospectus or in any related free writing prospectus is accurate as of its respective date, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates.
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INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them. This means that we can disclose important information to you by referring you to those documents. Each document incorporated by reference is current only as of the date of such document, and the incorporation by reference of such documents should not create any implication that there has been no change in our affairs since such date. The information incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When we update the information contained in documents that have been incorporated by reference by making future filings with the SEC, the information incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in the case of a conflict or inconsistency between information contained in this prospectus and information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later.
We incorporate by reference the documents listed below:
| • | our annual report on Form 20-F for the fiscal year ended December 31, 2011 filed with the SEC on May 15, 2012, as amended by Amendment No. 1 we filed with the SEC on May 30, 2012, except for the interactive data file as Exhibit 101 to such annual report that we furnished to the SEC in accordance with Rule 405 of Regulation S-T of the SEC; |
| • | our report on Form 6-K filed with the SEC on June 26, 2012, except for the exhibit to that report, which was furnished to the SEC; and |
| • | all our future annual reports on Form 20-F and our reports on Form 6-K to the extent filed with (and not including information deemed furnished to) the SEC or any portion of such reports that we indicate is incorporated by reference into this prospectus, until all of the securities offered by this prospectus are sold. |
Unless expressly incorporated by reference, nothing in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with, the SEC. We will provide to you, upon your written or oral request, without charge, a copy of any or all of the documents we refer to above which we have incorporated in this prospectus by reference, except for exhibits to such documents unless the exhibits are specifically incorporated by reference into the documents. You should direct your requests to LDK Solar Co., Ltd., High-Tech Industrial Park, Xinyu City, Jiangxi Province 338032, People’s Republic of China, Attn: Company Secretary, Tel. No. +(86) 790 666-8000.
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SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus, the documents incorporated by reference, any related prospectus supplement and any related free writing prospectus include “forward-looking statements” within the meaning of, and intended to qualify for the safe harbor from liability established by, the United States Private Securities Litigation Reform Act of 1995. These statements, which are not statements of historical fact, may contain estimates, assumptions, projections and/or expectations regarding future events, which may or may not occur. These statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. In some cases, you can identify these forward-looking statements by words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “should,” “will,” “would,” or similar expressions, including their negatives. These forward-looking statements include, without limitation, statements relating to:
| • | our goals and strategies; |
| • | our future business development, results of operations and financial condition; |
| • | our plans to expand our production capacity of photovoltaic, or PV, products; |
| • | expected growth of and changes in the PV industry, solar power industry and renewable energy industry; |
| • | our ability to maintain and strengthen our position as a leading vertically integrated manufacturer of PV products; |
| • | our ability to maintain a strong relationship with any particular supplier or customer; |
| • | the effect of competition on demand for and price of our products; |
| • | determination of the fair value of our ordinary shares and ADSs; |
| • | any government subsidies and economic incentives to us or to the PV industry; |
| • | PRC governmental policies regarding foreign investments; |
| • | other risks described in our filings with the SEC; and |
| • | risks identified under “Item 3. Key Information — D. Risk Factors” in our annual report on Form 20-F for the year ended December 31, 2011. |
This prospectus, the documents incorporated by reference, any related prospectus supplement and any related free writing prospectus also contain or incorporate by reference data related to the solar power market in several countries, including China. This market data, including data from Solarbuzz LLC, an independent solar energy industry research company, or Solarbuzz, includes projections that are based on a number of assumptions. The solar power market may not grow at the rates projected by the market data, or at all. The failure of the market to grow at the projected rates may materially and adversely affect our business and the market price of our ADSs. In addition, the rapidly changing nature of the solar power market subjects any projections or estimates relating to the growth prospects or future condition of our market to significant uncertainties. If any one or more of the assumptions underlying the market data proves to be incorrect, actual results may differ from the projections based on these assumptions. You should not place undue reliance on these forward-looking statements.
The forward-looking statements made in this prospectus, the documents incorporated by reference, any related prospectus supplement and any related free writing prospectus relate only to events or information as of the date on which the statements are made or, if obtained from third-party studies or reports, the date of the corresponding study or report. We undertake no obligation, beyond that required by law, to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made, even though our situation will change in the future.
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We are a leading vertically integrated manufacturer of PV products. While our historical strength was in the solar wafer business, we have expanded our business to meet the PV industry’s requirements for high-quality and low-cost polysilicon, wafers, cells, modules, systems, power projects and solutions. While we continue to pursue further vertical integration at each step of our PV product value chain, our revenue also includes significant portions of sales of our solar wafers, modules and polysilicon.
Polysilicon. We commenced production and sale of polysilicon in the third quarter of 2009. As of March 31, 2012, our two polysilicon plants, Mahong Plant and Xiacun Plant, located near our wafer production facilities, had an aggregate installed annualized polysilicon production capacity of approximately 17,000 metric tons, or MT. We leverage a modified Siemens process as the basis for our polysilicon production, employ state-of-the-art production facilities at our polysilicon plants, and are able to produce polysilicon that meets the premium quality requirements of international PV and electronics industries. While all of the polysilicon we currently produce is solar-grade, our Mahong Plant, representing approximately 90% of our aggregate polysilicon production capacity, is capable of producing electronic-grade polysilicon in accordance with international industry standards and practice. We intend to increase our total installed annualized polysilicon production capacity to 25,000 MT by the year-end of 2012 through the completion of construction of our two plants, technological improvement, process refinement and equipment enhancement. As part of our strategy to reduce wafer production costs, we consume a significant portion of our polysilicon output in our wafer production. For each of the years ended December 31, 2009, 2010 and 2011, we produced approximately 225 MT, 5,052 MT and 10,455 MT of polysilicon, respectively, and consumed 100% and approximately 72.7% and 82.8%, respectively, of our total polysilicon production, with the rest sold to independent third-party customers.
Solar Wafers. We manufacture solar wafers in our wafer production facilities in Xinyu City Hi-Tech Industrial Park in Jiangxi Province, China. We produce and sell multicrystalline and monocrystalline solar wafers globally to manufacturers of solar cells and solar modules. We also provide wafer processing services, producing wafers for customers who provide polysilicon materials to us. As of March 31, 2012, we had an annualized solar wafer production capacity of approximately 4.3 gigawatts, or GW. We plan to increase our annualized solar wafer production capacity to 4.5 GW by the end of 2012. As part of our vertical integration strategy to capture opportunities at each value chain in the PV business, we consume a significant portion of our solar wafer output in our solar cell production starting from the third quarter of 2010. In the years ended December 31, 2010 and 2011, we produced approximately 2.50 GW and 2.23 GW of solar wafers, respectively, and consumed approximately 3.5% and 29.5%, respectively, of our total solar wafer production in our in-house production of solar cells, with the rest sold to independent third-party customers.
Solar Cells. We commenced solar cell production in the third quarter of 2010. We produce solar cells in our production facilities in Hefei City of Anhui Province, and in Xinyu City Hi-Tech Industrial Park in Jiangxi Province, China. As of March 31, 2012, we had an annualized solar cell production capacity of approximately 1.7 GW, and plan to increase our annualized solar cell production capacity to 2.2 GW by the year-end of 2012. In the years ended December 31, 2010 and 2011, we produced approximately 30.0 megawatts, or MW, and 590.0 MW of solar cells, respectively. As part of our vertical integration strategy to capture opportunities at each value chain of the PV business, we have used a significant portion of the solar cells we produce in our in-house production of solar modules, in addition to outsourcing a significant amount of our cell requirements from third party suppliers.
Solar Modules. We commenced solar module production in 2010 and commenced commercial sales of our solar modules to PV product developers, distributors and system integrators in the third quarter of 2009. We produce solar modules in our production facilities in Nanchang City of Jiangxi Province, Suzhou City of Jiangsu Province and Hefei City of Anhui Province, China. As of March 31, 2012, we had an annualized solar module production capacity of approximately 1.7 GW, and we plan to increase our annualized solar module production capacity to 2.6 GW by the end of 2012. Our modules have been certified in various European countries and the U.S. In the years ended December 31, 2010 and 2011, we produced approximately 540.0 MW and 840.0 MW of solar modules, respectively, and consumed approximately 4.0% and 9.0%, respectively, of our total solar module production in our solar farm projects, with the rest sold to independent third-party customers.
Solar Farm Projects. We design and develop solar farm projects in China, Europe and the U.S. and may enter additional markets. We develop solar farm projects both on our own and through jointly-controlled entities. We develop these projects with the intent to sell them to third parties upon completion of their development. We also provide engineering, procurement and construction, or EPC, services for solar farm projects. We typically enter into a letter of intent to sell our solar farm projects prior to, and contingent upon, the completion of the projects. We have financed our solar farm projects with bank financings.
Our production facilities are primarily located in Xinyu City, Jiangxi Province, with our cell production facilities also in Hefei City, Anhui Province, and our module production facilities in Nanchang City, Jiangxi Province, Suzhou City, Jiangsu Province, and Hefei City, Anhui Province, China.
Our principal executive offices are located at Hi-Tech Industrial Park, Xinyu City, Jiangxi Province 338032, People’s Republic of China, and our telephone number is (86 790) 666-8000.
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Investing in our securities involves risk. You should carefully consider the risk factors and uncertainties described in our most recent annual report on Form 20-F, which is incorporated by reference in this prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act, and any risk factors and other information described in the applicable prospectus supplement or any free writing prospectus before acquiring any of our securities. These risks and uncertainties could materially affect our business, results of operations or financial condition and cause the value of our securities to decline. You could lose all or part of your investment.
Unless we indicate otherwise in a prospectus supplement, we plan to use the net proceeds from the sale of the securities for general corporate purposes. We will not receive proceeds from sales of securities by persons other than us except as may otherwise be stated in any applicable prospectus supplement.
RECENTLY ISSUED ACCOUNTING STANDARDS
As we disclosed in our annual report on Form 20-F for the fiscal year ended December 31, 2011 incorporated herein by reference, in June 2011, the FASB issued ASU (Accounting Standards Update) 2011-05,Comprehensive Income (Topic 220):Presentation of Comprehensive Income. Under this ASU, an entity will have the option to present the components of net income and comprehensive income in either one or two consecutive financial statements. The ASU has eliminated the option in U.S. GAAP to present other comprehensive income in the statement of changes in equity. An entity should apply the ASU retrospectively. We adopted this ASU on January 1, 2012 and chose to present the components of net income and comprehensive income in two consecutive financial statements. As we did not adopt and apply this ASU to our consolidated financial statements for the fiscal year ended December 31, 2011 as contained in our annual report on Form 20-F incorporated herein by reference, the following table presents the retrospective application of this ASU for the periods specified, with the components of net income and comprehensive income presented in two consecutive financial statements.
| Year Ended December 31, | ||||||||||||||||||||
| Consolidated Statement of Comprehensive Income Information | 2007 | 2008 | 2009 | 2010 | 2011 | |||||||||||||||
| ($ in thousands) | ||||||||||||||||||||
Net income (loss) | 144,059 | 66,408 | (233,996 | ) | 296,467 | (608,954 | ) | |||||||||||||
Other comprehensive income (loss) | ||||||||||||||||||||
Foreign currency exchange translation adjustment, net of nil tax | 29,162 | 51,833 | 2,541 | 42,500 | 80,683 | |||||||||||||||
Fair value changes in available-for-sale equity security, net of tax effect | — | — | — | — | 6,653 | |||||||||||||||
Comprehensive income (loss) | 173,221 | 118,241 | (231,455 | ) | 338,967 | (521,618 | ) | |||||||||||||
Less: comprehensive income attributable to non-controlling interests | — | — | 227 | 6,615 | 368 | |||||||||||||||
Less: comprehensive income attributable to redeemable non-controlling interests | — | — | — | — | 14,388 | |||||||||||||||
Comprehensive income (loss) attributable to LDKSolar Co., Ltd. | 173,221 | 118,241 | (231,682 | ) | 332,352 | (536,374 | ) | |||||||||||||
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We may issue from time to time, in one or more offerings, the following securities:
| • | ordinary shares, including ordinary shares represented by ADSs; |
| • | preferred shares; |
| • | warrants; |
| • | stock purchase contracts; and |
| • | equity-linked securities. |
Ordinary shares and ADSs. We have set forth in our most recent annual report on Form 20-F, which is incorporated by reference in this prospectus, a description of our ordinary shares, including our ADSs representing ordinary shares. We will set forth in the applicable prospectus supplement a description of any additional terms relating to our ordinary shares, including our ADSs representing ordinary shares.
Preferred shares. Our board of directors has the authority by resolution or resolutions to issue one or more classes or series of preferred shares and to fix the designations, preferences and relative, participating, optional or other rights and the qualifications, limitations or restrictions, including, without limitation, the number of shares constituting each class or series, dividend rights, conversion rights, redemption privileges, voting rights and liquidation preferences to the extent permitted by law. Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we sell under this prospectus and applicable prospectus supplements in the certificate of designation relating to that series. We will describe the terms of any series of preferred stock we offer in the applicable prospectus supplement.
Warrants. We may issue warrants for the purchase of our ordinary shares, ADSs, preferred shares or other securities. We may issue warrants independently or together with other securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. We will file a copy of the warrant agreement with the SEC in connection with any offering of warrants. We will describe the terms of any warrants we issue in the applicable prospectus supplement.
Stock Purchase Contracts. We may issue stock purchase contracts obligating holders to purchase from us and obligating us to sell to the holders, a specified number of our ordinary shares, ADSs or other securities at a future date or dates. The price per share and number of shares of the securities may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts may require holders to secure their obligations in a specified manner. The applicable prospectus supplement and any documents incorporated by reference will describe the terms of any stock purchase contracts.
Equity-linked Securities. We may issue debt or other securities that are exchangeable and/or convertible into our ordinary shares represented by ADSs. The terms of such exchangeable and/or convertible securities will be set forth in the applicable prospectus supplement. Such terms may include provisions for conversion, either mandatory, at the option of the holder or at our option, in which case the number of ordinary shares represented by ADSs or the number of other securities to be received by the holders of such exchangeable and/or convertible securities would be calculated as of a time and in the manner stated in the prospectus supplement.
We will also provide a description of the terms of the offering of securities, the initial offering price and the net proceeds to us and/or any selling security holder in the prospectus supplement relating to such offer. The supplement may also add, update or change information contained or incorporated by reference in this prospectus. You should carefully read this prospectus, information incorporated by reference in this prospectus and any supplement before you invest in any of our securities.
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We or any selling security holder may sell or distribute the securities offered by this prospectus and any applicable prospectus supplement and related free writing prospectus, from time to time, in one or more offerings, as follows:
| • | through agents; |
| • | to dealers or underwriters for resale; |
| • | directly to investors; |
| • | in “at-the-market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise; or |
| • | through a combination of any of these methods of sale. |
We will set forth in a free writing prospectus or prospectus supplement the terms of the offering of securities, including:
| • | the name or names of any agents or underwriters; |
| • | the purchase price of the securities being offered and the proceeds we will receive from the sale; |
| • | any over-allotment options under which underwriters may purchase additional securities from us; |
| • | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
| • | the public offering price; |
| • | any discounts or concessions allowed or reallowed or paid to dealers; and |
| • | any securities exchanges on which such securities may be listed. |
If we or any selling security holder use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. The underwriters will be obligated to purchase all the securities of the series offered if they purchase any of the securities of that series. We or any selling security holder may change from time to time any initial public offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers. We or any selling security holder may use underwriters with whom we have a material relationship. We or any selling security holder will describe in a free writing prospectus or prospectus supplement naming the underwriter the nature of any such relationship.
We or any selling security holder may designate agents who agree to use their reasonable efforts to solicit purchases for the period of their appointment or to sell securities on a continuing basis.
We or any selling security holder may also sell securities directly to one or more purchasers without using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any discounts or commissions they receive from us or any selling security holder and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. We or any selling security holder will identify in a free writing prospectus or the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We or any selling security holder may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or perform services for us or such selling security holder in the ordinary course of their businesses.
We or any selling security holder will bear all costs, expenses and fees in connection with the registration of the securities as well as the expenses of all commissions and discounts, if any, attributable to the sales of securities by us or such selling security holder.
Unless otherwise specified in the applicable prospectus supplement or any free writing prospectus, each class or series of securities will be a new issue with no established trading market, other than our ordinary shares represented by ADSs, which are listed on the New York Stock Exchange. We may elect to list any other class or series of securities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
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In connection with an offering, an underwriter may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater than the underwriters’ option to purchase additional securities, if any, from us or a selling security holder in the offering. If the underwriters have an over-allotment option to purchase additional securities from us or a selling security holder, the underwriters may close out any covered short position by either exercising their over-allotment option or purchasing securities in the open market. In determining the source of securities to close out the covered short position, the underwriters may consider, among other things, the price of securities available for purchase in the open market as compared to the price at which they may purchase securities through the over-allotment option. “Naked” short sales are any sales in excess of such option or where the underwriters do not have an over-allotment option. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the securities in the open market after pricing that could adversely affect investors who purchase in the offering.
Accordingly, to cover these short sales positions or to otherwise stabilize or maintain the price of the securities, the underwriters may bid for or purchase securities in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate members or other broker-dealers participating in the offering are reclaimed if securities previously distributed in the offering are repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. The impositions of a penalty bid may also affect the price of the securities to the extent that it discourages resale of the securities. The magnitude or effect of any stabilization or other transactions is uncertain. These transactions may be effected on the New York Stock Exchange or otherwise and, if commenced, may be discontinued at any time.
Material income tax consequences relating to the purchase, ownership and disposition of any of the securities offered by this prospectus will be set forth in the applicable prospectus supplement relating to the offering of those securities.
ENFORCEABILITY OF CIVIL LIABILITIES
We are an exempted limited liability company incorporated and existing under the laws of the Cayman Islands. We were incorporated in the Cayman Islands because of certain benefits associated with being a Cayman Islands corporation, such as political and economic stability, an effective judicial system, a favorable tax system, the absence of exchange controls or currency restrictions and the availability of professional and support services. However, the Cayman Islands has a less developed body of securities laws as compared to the United States and provides significantly less protection for investors. In addition, Cayman Islands companies may not have standing to sue before the federal courts of the United States.
Our constituent documents do not contain provisions requiring that disputes, including those arising under the securities laws of the United States, between us, our officers, directors and shareholders be arbitrated.
We currently conduct substantially all of our operations in China through our operating subsidiaries. Most of our assets are located in China. A majority of our directors and officers are nationals or residents of jurisdictions outside the United States and a substantial portion of their assets are located outside the United States. As a result, it may be difficult for a shareholder to effect service of process within the United States upon these persons, or to enforce against us or against them judgments obtained in United States courts, including judgments predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States.
Conyers Dill & Pearman (Cayman) Limited, our special legal counsel as to Cayman Islands law, and Grandall Law Firm (Shanghai), our counsel as to PRC law, have advised us that there is uncertainty as to whether the courts of the Cayman Islands or China, respectively, would
| • | recognize or enforce judgments of United States courts obtained against us or our directors or officers predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States; or |
| • | entertain original actions brought in the Cayman Islands or China, respectively, against us or our directors or officers predicated upon the securities laws of the United States or any state in the United States. |
Conyers Dill & Pearman (Cayman) Limited has further advised us that the courts of the Cayman Islands would recognize as a valid judgment a final and conclusive judgment in personam obtained in the federal or state courts in the United States against the Company under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty) or, in certain circumstances, an in personam judgment for non-monetary relief, and would give a judgment based thereon provided that:
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| • | such courts had proper jurisdiction over the parties subject to such judgment; |
| • | such courts did not contravene the rules of natural justice of the Cayman Islands; |
| • | such judgment was not obtained by fraud; |
| • | the enforcement of the judgment would not be contrary to the public policy of the Cayman Islands; |
| • | no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of the Cayman Islands; and |
| • | there is due compliance with the correct procedures under the laws of the Cayman Islands. |
Grandall Law Firm (Shanghai) has advised us that the PRC Civil Procedures Law contains provisions relating to recognition and enforcement of foreign judgments. PRC courts may recognize and enforce foreign judgments in accordance with the requirements of the PRC Civil Procedures Law based either on treaties between China and the country where the judgment is made or on reciprocity between China and such other jurisdiction. There is, however, no such treaty between China and the United States or between China and the Cayman Islands.
Except as otherwise set forth in the applicable prospectus supplement, certain legal matters in connection with the securities offered pursuant to this prospectus will be passed upon for us by Sidley Austin LLP, our special United States counsel, to the extent governed by the laws of the State of New York, and by Conyers Dill & Pearman (Cayman) Limited, our special legal counsel as to Cayman Islands law, to the extent governed by the laws of the Cayman Islands. Legal matters as to PRC law will be passed upon for us by Grandall Law Firm (Shanghai), our counsel as to PRC law. If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel to underwriters, dealers or agents, such counsel will be named in the applicable prospectus supplement relating to any such offering.
The consolidated financial statements of LDK Solar Co., Ltd. as of December 31, 2010 and 2011 and for each of the years in the three-year period ended December 31, 2011, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2011 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering the 2011 consolidated financial statements contains an explanatory paragraph that states that we have a net working capital deficit and are restricted to incur additional indebtedness as we have not met a financial covenant ratio under a long-term debt agreement as of December 31, 2011, and that these conditions raise substantial doubt about our ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty. The offices of KPMG are located at the 8th Floor, Prince’s Building, 10 Chater Road, Central, Hong Kong.
The statements with respect to our corporate structure, risks relating to our company and our industry, risks relating to business operations in China, operating and financial review and prospects, business overview, including PRC government regulations incorporated in this prospectus and the registration statement, of which this prospectus forms a part, by reference to our annual report on Form 20-F for the year ended December 31, 2011 and the statements included in this prospectus under section entitled “Enforceability of Civil Liabilities,” to the extent they constitute matters of PRC law, have been reviewed and confirmed by Grandall Law Firm (Shanghai), our PRC counsel, as experts in such matters, and are so incorporated by reference or included in this prospectus in reliance upon such review and confirmation. The offices of Grandall Law Firm (Shanghai) are located at 45th Floor, Nan Zheng Building, 580 West Nanjing Road, Shanghai 200041, China.
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WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We are currently subject to periodic reporting and other informational requirements of the Exchange Act as applicable to foreign private issuers. Accordingly, we are required to file with or furnish to the SEC reports, including annual reports on Form 20-F, and other information. All information filed with or furnished to the SEC can be inspected and copied at the public reference facilities maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You can request copies of these documents upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. Additional information may also be obtained over the Internet at the SEC’s website atwww.sec.gov. We also maintain a website atwww.ldksolar.com, but information contained on our website is not incorporated by reference in this prospectus or any prospectus supplement. You should not regard any information on our website as a part of this prospectus or any prospectus supplement.
As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we will not be required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act. However, we intend to furnish the depositary with our annual reports, which will include a review of operations and annual audited consolidated financial statements prepared in conformity with U.S. GAAP, and all notices of shareholders’ meetings, and other reports and communications that are made generally available to our shareholders. The depositary will make such notices, reports and communications available to holders of our ADSs and, upon our request, will mail to all record holders of our ADSs the information contained in any notice of a shareholders’ meeting received by the depositary from us.
We have filed with the SEC a registration statement on Form F-3 relating to the securities covered by this prospectus. This prospectus and any accompanying prospectus supplement are part of the registration statement and do not contain all the information in the registration statement. You will find additional information about us in the registration statement. Any statement made in this prospectus concerning a contract or other document of ours is not necessarily complete, and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter. Each such statement is qualified in all respects by reference to the document to which it refers. You may inspect a copy of the registration statement at the SEC’s Public Reference Room in Washington, D.C., as well as through the SEC’s website.
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PART II
Information Not Required in Prospectus
| Item 8. | 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.
Article 167 of our fourth amended and restated articles of association provide that we may indemnify our directors, secretary, officers, liquidator and trustees (if any) acting in relation to any of our affairs against all actions, costs, charges, losses, damages and expenses incurred by reason of any act done or omitted in the execution of their duty in their capacities as such, except if they acted in a fraudulent or dishonest manner or defaulted in any action against them.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted for our directors or officers under the provisions contained in our fourth amended and restated memorandum and articles of association, the Cayman Islands law or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable as a matter of United States law.
| Item 9. | Exhibits |
See Exhibit Index beginning on page II-4 of this registration statement.
| Item 10. | Undertakings. |
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 the 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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 such information in the registration statement;
provided,however, that paragraphs (i), (ii) and (iii) 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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the 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.
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished,providedthat the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Rule 3-19 of Regulation S-X if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
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(5) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(7) 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 the 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 initialbona fide offering thereof.
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 SEC 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, as amended, we certify that we have reasonable grounds to believe that we meet all of the requirements for filing on Form F-3 and have duly caused this registration statement to be signed on our behalf by the undersigned, thereunto duly authorized, in Hong Kong, People’s Republic of China, on July 10, 2012.
| LDK SOLAR CO., LTD. | ||||
| By: | /s/ Xiaofeng Peng | |||
| Name: | Xiaofeng Peng | |||
| Title: | Chairman & CEO | |||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mr. Xiaofeng Peng and Mr. Jack Kun-Shen Lai, and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and supplements to this registration statement on Form F-3 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the United States 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 each such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, 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 on July 10, 2012:
Signature | Title(s) | |
/s/ Xiaofeng Peng | Chairman & Chief Executive Officer | |
| Xiaofeng Peng | ||
/s/ Xingxue Tong | Director, President & Chief Operating Officer | |
| Xingxue Tong | ||
/s/ Liangbao Zhu | Director & Executive Vice President | |
| Liangbao Zhu | ||
/s/ Maurice Wai-fung Ngai | Independent Director | |
| Maurice Wai-fung Ngai | ||
/s/ Bing Xiang | Independent Director | |
| Bing Xiang | ||
/s/ Junwu Liang | Independent Director | |
| Junwu Liang | ||
/s/ Jack Kun-Shen Lai | Executive Vice President, | |
| Jack Kun-Shen Lai | Chief Financial Officer & Representative in the United States | |
/s/ Qiqiang Yao | Senior Vice President | |
| Qiqiang Yao | & Principal Accounting Officer | |
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Exhibit Index
Exhibit | Description | |
| 1.1 * | Form of underwriting agreement. | |
| 4.1 | Specimen ordinary share certificate representing our ordinary shares, incorporated herein by reference to Exhibit 4.1 to our registration statement on Form F-1, as amended, filed with the SEC (File No. 333-142881) on May 14, 2007. | |
| 4.2 | Specimen American depositary receipt representing our ADSs, incorporated herein by reference to Exhibit 99(a)(2) to our registration statement on Form F-6 filed with the SEC (File No. 333-171862) on January 25, 2011. | |
| 4.3 | Form of Deposit Agreement, incorporated herein by reference to our registration statement on Form F-6 filed with the SEC (File No. 333-142899) on May 14, 2007. | |
| 4.4 | Restricted Issuance Agreement, dated as of April 15, 2008, as supplement to the Deposit Agreement, incorporated herein by reference to Exhibit 4.4 to our registration statement on Form F-3 filed with the SEC (File No. 333-152009) on June 30, 2008. | |
| 4.4 * | Specimen preferred share certificate and form of certificate of designations of preferred shares. | |
| 5.1 | Opinion of Conyers Dill & Pearman (Cayman) Limited on the validity of securities. | |
| 23.1 | Consent of KPMG, independent registered public accounting firm. | |
| 23.2 | Consent of Conyers Dill & Pearman (Cayman) Limited (included in Exhibit 5.1). | |
| 23.3 | Consent of Grandall Law Firm (Shanghai). | |
| 24.1 | Power of attorney (included on signature page hereof). | |
| * | To be filed as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a report filed under the Securities Exchange Act of 1934 and incorporated herein by reference, each to the extent used for the issuance of ordinary shares, including ordinary shares represented by ADSs, preferred shares, warrants, stock purchase contracts, equity-linked securities or a combination thereof. |
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