UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F/A
(AMENDMENT NO. 1)
(Mark One)
| ¨ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2014.
OR
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
OR
| ¨ | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report
Commission file number: 001-36195
SUNGY MOBILE LIMITED
(Exact name of Registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
Cayman Islands
(Jurisdiction of incorporation or organization)
Floor 17, Tower A, China International Center
No. 33 Zhongshan 3rd Road
Yuexiu District, Guangzhou 510055
People’s Republic of China
(Address of principal executive offices)
Longfei Zhou
Chief Financial Officer
Tel: +86 (20) 6681-5066
E-mail: zhoulongfei@gomo.com
Floor 17, Tower A, China International Center
No. 33 Zhongshan 3rd Road
Yuexiu District, Guangzhou 510055
People’s Republic of China
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered | |
American Depositary Shares, each representing six Class A ordinary shares, par value US$0.0001 per share | The NASDAQ Global Market | |
| Class A ordinary share, par value US$0.0001 per share* | The NASDAQ Global Market |
| * | Not for trading, but only in connection with the listing on The NASDAQ Global Market of the American depositary shares. |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
(Title of Class)
Indicate the number of outstanding shares of each of the Issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 66,866,388 Class A ordinary shares, par value US$0.0001 per share, and 123,172,962 Class B ordinary shares, par value US$0.0001 per share, were outstanding as of December 31, 2014.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ¨ No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ¨ No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer ¨ | Accelerated filer x | Non-accelerated filer ¨ |
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP x | International Financial Reporting Standards as issued by the International Accounting Standards Board ¨ | Other ¨ |
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.
Item 17 ¨ Item 18 ¨
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS)
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes ¨ No ¨
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This Amendment No. 1 (“Amendment No. 1”) to our Annual Report on Form 20-F for the year ended December 31, 2014, originally filed with the Securities and Exchange Commission on April 16, 2015 (the “2014 Form 20-F”), is being filed for the purpose of correcting the relevant disclosure in “Item 10. Additional Information” and “Item 16G. Corporate Governance” of the 2014 Form 20-F. As required by Rule 12b-15 of the Securities and Exchange Act of 1934, as amended, the Company is also filing as exhibits to Amendment No. 1 the certifications required under Section 302 of the Sarbanes-Oxley Act of 2002.
Other than as required to reflect the amendment discussed above, this Amendment No. 1 does not, and does not purport to, amend, update or restate any other information in the 2014 Form 20-F, or reflect any events that have occurred after the filing of the 2014 Form 20-F. Our 2014 Form 20-F, as amended by this Amendment No. 1, continues to speak as of the initial filing date of the 2014 Form 20-F.
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Item 10. Additional Information.
Memorandum and Articles of Association
General Meetings of Shareholders
We may in each year hold a general meeting as an annual general meeting. Shareholders’ meetings may be convened by a majority of our board of directors or our chairman. Additionally, on the requisition of shareholders representing not less than one-third of the voting rights entitled to vote at general meetings, the board shall convene an extraordinary general meeting. Advance notice of at least fourteen calendar days is required for the convening of our annual general shareholders’ meeting and any other general meeting of our shareholders. A quorum required for a meeting of shareholders consists of at least two shareholders present or by proxy, representing not less than one-third in nominal value of the total issued voting shares in our company.
Rules 5620 (a) and (b) of the NASDAQ Market Marketplace Rules state that each issuer shall hold an annual meeting of shareholders no later than one year after the end of the company’s fiscal year-end, unless such company is a limited partnership that meets certain requirements and each company that is not a limited partnership shall solicit proxies and provide statements for all meetings of shareholders and shall provide copies of such proxy solicitation to NASDAQ. The fact that we did not and intend not to hold an annual meeting of shareholders for a given year if there are no significant matters that require shareholders’ approval, and to solicit proxies, provide statements and provide copies of such proxy solicitation to NASDAQ for all such shareholders meeting described above is not in compliance with these rules. However, Maples and Calder, our counsel as to Cayman Islands law, has confirmed that the Companies Law does not require us to follow or comply with the requirements set out in Rules 5620(a) and (b) as referred above, and there are also no such requirements under our amended and restated memorandum and articles of association currently in effect. Besides, on December 2, 2014, NASDAQ sent a letter reminding us of the above requirements, in response to which, we provided NASDAQ with a letter from Maples and Calder indicating that we follow home country practice with respect to annual meetings of shareholders. NASDAQ has reviewed and granted us home country exemption with respect to this point. Therefore, we follow home country practice in lieu of Rules 5620(a) and (b) as referred to above.
Rule 5620(c) of the NASDAQ Stock Market Marketplace Rules states that each company that is not a limited partnership shall provide for a quorum as specified in its by-laws for any meeting of the holders of common stock, provided that in no case shall such quorum be less than 33 1/3 % of the outstanding shares of the company’s common voting stock. The fact that we set shareholder meeting quorum at not less than one-third in nominal value of the total issued voting shares in our company is not in compliance with this rule. However, Maples and Calder has confirmed that the Companies Law does not require us to follow or comply with the requirements set out in Rule 5620(c) as referred to above, and there are also no such requirements under our amended and restated memorandum and articles of association currently in effect. In addition, NASDAQ has reviewed and granted us home country exemption with respect to this point. Therefore, we intend to follow home country practice in lieu of Rule 5620(c) as referred to above.
Item 16G. Corporate Governance.
We are a “foreign private issuer” (as such term is defined in Rule 3b-4 under the Exchange Act), and our ADSs, each representing six Class A ordinary shares, are listed on the NASDAQ Global Market. Under Rule 5615 of the NASDAQ Stock Market Marketplace Rules, Nasdaq-listed companies that are foreign private issuers are permitted to follow home country practice in lieu of the corporate governance provisions specified by NASDAQ with limited exceptions. The following summarizes some significant ways in which our corporate governance practices differ from those followed by domestic companies under the listing standards of NASDAQ:
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| • | We allow shareholders to vote by show of hands unless a poll is demanded, which is inconsistent with Rule 5640 of the NASDAQ Stock Market Marketplace Rules which states voting rights of existing shareholders of publicly traded common stock cannot be disparately reduced or restricted through any corporate action or issuance; |
| • | We do not hold an annual meeting of shareholders for a given year if there is no significant matter that requires shareholders’ approval, and do not solicit proxies, provide statements and provide copies of such proxy solicitation to NASDAQ for all such shareholders meeting described above, which is inconsistent with Rules 5620(a) and (b) of the NASDAQ Stock Market Marketplace Rules which state that each company shall hold an annual meeting of shareholders no later than one year after the end of the company’s fiscal year-end, unless such company is a limited partnership that meets certain requirements and each such issuer shall solicit proxies and provide statements for all meetings of shareholders and shall provide copies of such proxy solicitation to NASDAQ. |
| • | We set shareholder meeting quorum at not less than one-third in nominal value of the total issued voting shares in our company, which is inconsistent with Rule 5620(c) of the NASDAQ Stock Market Marketplace Rules which states that each company that is not a limited partnership shall provide for a quorum as specified in its by-laws for any meeting of the holders of common stock, provided that in no case shall such quorum be less than 33 1/3 % of the outstanding shares of the company’s common voting stock. |
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| ITEM 19. | EXHIBITS |
Exhibit | Description of Document | |
| 12.1 | Certification by the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
| 12.2 | Certification by the Acting Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
| 15.1 | Consent of Maples and Calder | |
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The registrant hereby certifies that it meets all of the requirements for filing its annual report on Form 20-F and that it has duly caused and authorized the undersigned to sign this Amendment No. 1 on Form 20-F/A on its behalf.
| SUNGY MOBILE LIMITED | ||
| By: | /s/ Yuqiang Deng | |
| Name: | Yuqiang Deng | |
| Title: | Chairman and Chief Executive Officer | |
Date: June 9, 2015
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