As filed with the Securities and Exchange Commission on December 18, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
China Sunergy Co., Ltd.
(Exact Name of Registrant as Specified in Its Charter)
| Cayman Islands | 3674 | Not Applicable | ||
(State or Other Jurisdiction of Incorporation or Organization) | (IRS Employer Identification No.) |
No. 123 Focheng West Road
Jiangning Economic & Technical Development Zone
Nanjing, Jiangsu 211100, People’s Republic of China
(86 25) 5276 6688
(Address of Principal Executive Offices)
China Sunergy Co., Ltd. Share Incentive Plan
(Full Title of the Plan)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
(212) 894-8940
(Name and Address of Agent For Service)
Copies to:
David T. Zhang
Latham & Watkins LLP
41st Floor, One Exchange Square
8 Connaught Place, Central
Hong Kong S.A.R., China
(852) 2522-7886
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Aggregate Offering Price(2) | Amount of Fee | |||
Ordinary Shares, $0.0001 par value per share (3) | 1,586,900 shares | $2,035,993 | ||||
Ordinary Shares, $0.0001 par value per share (3) | 913,100 shares | $1,714,346 | ||||
Total (4) | 2,500,000 shares | $3,750,338 | $116 |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement includes an indeterminate number of additional shares which may be offered and issued to prevent dilution from stock splits, stock dividends or similar transactions as provided in the above-referenced plan. |
| (2) | These shares are offered under the Share Incentive Plan. Pursuant to Rule 457(c) and Rule 457(h)(1), the maximum aggregate offering price is calculated as the sum of (a) the product of 1,586,900 shares issuable upon the exercise of outstanding options as of December 18, 2007 multiplied by the exercise prices of $ 1.283 per share, which is equal to an aggregate offering price of $2,035,993, and (b) the product of the remaining 913,100 shares issued or reserved under the plan multiplied by the average of the high and low prices for the Registrant’s American Depositary Shares (each representing six ordinary shares), or ADSs, as quoted on the Nasdaq Global Market on December 17, 2007, or $11.27, which is equal to an aggregate offering price of approximately $1,714,346. |
| (3) | These ordinary shares may be represented by the Registrant’s ADSs, each of which represents six ordinary shares. The Registrant’s ADSs issuable upon deposit of the ordinary shares registered hereby have been registered under a separate registration statement on Form F-6 (333-142574). |
| (4) | Any ordinary shares covered by an award granted under the Share Option Plan (or portion of an award) which is forfeited, canceled or expires (whether voluntarily or involuntarily) shall be deemed not to have been issued for purposes of determining the maximum aggregate number of ordinary shares which may be issued under the Plan. Ordinary shares that actually have been issued under the Plan pursuant to an award shall not be returned to the Plan and shall not become available for future issuance under the Plan, except that if unvested ordinary shares are forfeited or repurchased by the Company at their original issue price, such ordinary shares shall become available for future grant under the Plan. |
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Item 1. | Plan Information.* |
| Item 2. | Registrant Information and Employee Plan Annual Information.* |
* | Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act, and the “Note” to Part I of Form S-8. |
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by China Sunergy Co., Ltd. (the “Registrant”) with the Commission are incorporated by reference herein:
(a) The Registrant’s prospectus filed (the “Prospectus”) pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended (the “Securities Act) on May 17, 2007;
(b) The Registrant’s Reports of Foreign Private Issuer on Form 6-K filed with the Commission on July 5, 2007, July 31, 2007, August 27, 2007, September 19, 2007 and November 21, 2007; and
(c) The Registrant’s “Description of Share Capital” and “Description of American Depositary Shares” contained in the Prospectus, and all amendments and reports subsequently filed for the purpose of updating that description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the effective date of this Registration Statement, prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Any statement contained herein or in any 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 to constitute a part of this Registration Statement, except as so modified or superseded.
| Item 4. | Description of Securities. |
Not Applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not Applicable.
| Item 6. | Indemnification of Directors and Officers. |
Cayman Islands law does not limit the extent to which a company’s articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. The Registrant’s Articles of Association provide for indemnification of officers and directors for losses, damages, costs and expenses incurred in their capacities as such, except through their fraud or dishonesty.
Pursuant to the form of indemnification agreements filed as Exhibit 10.2 to the Registrant’s Registration Statement on Form F-1, as amended (Registration No. 333-142367), the Registrant has agreed to indemnify its directors and officers against certain liabilities and expenses incurred by such persons in connection with claims made by reason of their being such a director or officer.
The Underwriting Agreement, the form of which was filed as Exhibit 1.1 to the Registrant’s Registration Statement on Form F-1, as amended (Registration No. 333-142367), also provides for indemnification of the Registrant and its officers and directors.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
The Registrant has obtained a policy of directors’ and officers’ liability insurance that insures the Registrant’s directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances.
| Item 7. | Exemption from Registration Claimed. |
Not Applicable.
| Item 8. | Exhibits. |
See Exhibit Index.
| Item 9. | Undertakings. |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference into this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to this 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.
(b) The undersigned Registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report filed on Form 20-F pursuant to Section 13(a) or Section 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 this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Changzhou, People’s Republic of China, on December 18 , 2007.
| China Sunergy Co., Ltd. | ||
| By: | /s/ Tingxiu Lu | |
| Name: | Tingxiu Lu | |
| Title: | Chairman | |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, severally and not jointly, Tingxiu Lu and Allen Ruennsheng Wang, with full power to act alone, as his or her true and lawful attorney-in-fact, with the power of substitution, for and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Tingxiu Lu | Chairman | December 18, 2007 | ||
| Name: Tingxiu Lu | ||||
/s/ Allen Ruennsheng Wang | December 18, 2007 | |||
| Name: Allen Ruennsheng Wang | Director, Chief Executive Officer (principal executive officer) | |||
Signature | Title | Date | ||
/s/ Jianhua Zhao | Director | December 18, 2007 | ||
| Name: Jianhua Zhao | ||||
/s/ Fengming Zhang | Director | December 18, 2007 | ||
| Name: Fengming Zhang | ||||
/s/ Alan Howard Smith | Director | December 18, 2007 | ||
| Name: Alan Howard Smith | ||||
/s/ Xiaoqian Zhou | Director | December 18, 2007 | ||
| Name: Xiaoqian Zhou | ||||
/s/ Zhiping Zhu | ||||
| Name: Zhiping Zhu | Acting Chief Financial Officer (principal financial and accounting officer) | December 18, 2007 | ||
/s/ Donald J. Puglisi | ||||
Name: Donald J. Puglisi Title: Managing Director, Puglisi & Associates | U.S. Representative | December 18, 2007 | ||
EXHIBIT INDEX
| Exhibit Number | Description | |
| 5.1* | Opinion of Conyers Dill & Pearman. | |
| 10.1* | China Sunergy Co., Ltd. Share Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Registration Statement on Form F-1 (file no. 333-142367) filed with the Securities and Exchange Commission on April 25, 2007). | |
| 23.1* | Consent of Deloitte Touche Tohmatsu, Independent Registered Public Accounting Firm. | |
| 23.2* | Consent of Conyers Dill & Pearman (included in Exhibit 5.1). | |
| 24.1* | Power of Attorney (included on signature page hereto). | |
| * | Filed herewith. |
