As filed with the U.S. Securities and Exchange Commission on June 19, 2015
Registration No. 333-201170
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 9 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
YULONG ECO-MATERIALS LIMITED
(Exact name of Registrant as specified in its charter)
| Cayman Islands | | 3270 | | Not Applicable |
| (State or other jurisdiction of | | (Primary Standard Industrial | | (I.R.S. Employer |
| incorporation or organization) | | Classification Code Number) | | Identification Number) |
Eastern End of Xiwuzhuang Village
Jiaodian Town, Xinhua Area
Pingdingshan, Henan Province
People’s Republic of China
Phone: +86-375-8888988
(Address, including zip code, and telephone number including area code, of registrant’s principal executive office)
LKP Global Law, LLP
1901 Avenue of the Stars, Suite 480
Los Angeles, California 90067
424-239-1890
(Name, address, including zip code, and telephone number including area code, of agent for service)
Copies to:
Kevin K. Leung, Esq. LKP Global Law, LLP 1901 Avenue of the Stars, Suite 480 Los Angeles, California 90067 Tel: 424-239-1890 Fax: 424-869-6692 | | William N. Haddad, Esq.
Reed Smith LLP
599 Lexington Avenue
New York, New York 10022
Tel: (212) 521-5400
Fax: (212) 521-5450 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.
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 of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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 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 post-effective amendment filed pursuant to Rule 462(d) 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer ☐ | Accelerated filer ☐ | Non-accelerated filer ☐ | Smaller reporting company ☒ |
| (Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
| Title of Class of Securities to be Registered | | Amount to be Registered | | | Proposed
Maximum
Aggregate
Price Per
Share | | | Proposed
Maximum
Aggregate
Offering
Price(1) | | | Amount of Registration Fee | |
| Ordinary shares, $0.001 par value per share | | | 2,587,500 | (2) | | $ | 7.25 | | | $ | 18,759,375 | | | $ | 2,179.84 | |
| Warrants to purchase ordinary shares | | | - | | | | - | | | | - | | | | - | (3) |
| Ordinary shares underlying warrants(4)(5) | | | 112,500 | (6) | | | 7.25 | | | | 815,625 | | | | 94.78 | |
| Total | | | 2,700,000 | | | $ | 7.25 | | | $ | 19,575,000 | | | $ | 2,274.62 | (7) |
| (1) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
| (2) | Includes 337,500 ordinary shares, which the underwriters have the option to purchase to cover over-allotments, if any. |
| (3) | No registration fee pursuant to Rule 457(g) under the Securities Act. |
| (4) | The warrants are exercisable at a per share exercise price equal to 100% of the public offering price. As estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(g) under the Securities Act, based on an estimated proposed maximum aggregate offering price of $815,625, or 5% of $16,312,500. |
| (5) | The ordinary shares underlying the warrants are being registered solely in connection with the Securities and Exchange Commission’s Compliance and Disclosure Interpretations for Securities Act Sections, Question 139.05. |
| (6) | Includes shares equal to 2.875% of the ordinary shares being offered in this offering (excluding over-allotment), underlying the warrants being granted to the underwriters, and shares equal to 2.125% of the ordinary shares being offered in this offering (excluding over-allotment), underlying the warrants granted to Cuttone & Co, Inc., who is acting as our independent financial adviser. |
| (7) | Previously paid. |
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 thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to the said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 9 (“Amendment No. 9”) to the Registration Statement on Form S-1 (File No. 333-201170) of the registrant (the “Registration Statement”) is being filed solely for the purpose of filing certain exhibits as indicated in Part II of this Amendment No. 9. This Amendment No. 9 does not modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly, a preliminary prospectus has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than the underwriting discounts, payable in connection with the sale and distribution of the securities being registered. All amounts are estimated except the SEC registration fee, the FINRA filing fee and the stock exchange listing fee. Except as otherwise noted, all the expenses below will be paid by us.
| SEC registration fee | | $ | 2,274.62 | |
| FINRA filing fee | | | 3,485.19 | |
| NASDAQ listing fee | | | 55,000.00 | |
| Legal fees and expenses * | | | 500,000.00 | |
| Accounting fees and expenses * | | | 500,000.00 | |
| Edgar filing, printing and engraving expenses * | | | 20,000.00 | |
| Transfer agent and registrar fees and expenses * | | | 2,000.00 | |
| Miscellaneous fees and expenses * | | | 10,000.00 | |
| Total * | | $ | 1,092,759.81 | |
Item 14. 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 or committing a crime. Our 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 own fraud and dishonesty.
The form of Underwriting Agreement filed as Exhibit 1.1 to this Registration Statement will also provide for indemnification of us and our officers and directors for certain liabilities, including liabilities arising under the Securities Act, but only to the extent that such liabilities are caused by information relating to the underwriters furnished to us in writing expressly for use in this registration statement and certain other disclosure documents.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 15. Recent Sales of Unregistered Securities.
The following sets forth information regarding all unregistered securities sold by us during the last three years (giving effect to the 4-for-5 reverse stock split effected on March 3, 2015):
| Purchaser | | Date of Sale or
Issuance | | Number of
Ordinary
Shares* | | | Consideration | | | Securities
Registration
Exemptions |
| | | | | | | | | | | |
| Founding shareholder | | March 18, 2011 | | | 800,000 | | | $ | 10,000 | | | Section 4(2) of the Securities Act(1) |
| | | | | | | | | | | | | |
| 10 investors | | May 16, 2011 | | | 360,000 | | | $ | 800,000 | | | Section 4(2) of the Securities Act(1) |
| | | | | | | | | | | | | |
6 shareholders of
Yulong BVI | | December 22, 2011 | | | 6,840,000 | | | | 10,000 ordinary shares of Yulong BVI | | | Regulation S under the Securities Act |
| | (1) | To our knowledge, each of the investors acquired the securities for its own account for investment only and not with a view to or for sale in connection with any distribution thereof, and had adequate access, through their relationships with us, to information about us prior to their purchase of our securities. |
Item 16. Exhibits and Financial Statement Schedules.
| | (a) | Exhibits: See Exhibit Index immediately following the signature pages. |
| | (b) | Financial statement schedules. All schedules have been omitted because the information required to be presented in them is not applicable or is shown in the audited consolidated financial statements or related notes. |
Item 17. Undertakings.
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
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 Securities and Exchange 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 of whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
| (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. |
| (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) | That, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
| (4) | For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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. |
| (5) | File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering. |
| (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 (§230.424 of this chapter); |
| | | |
| | (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. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Amendment No. 9 to the Registration Statement and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Pingdingshan, Henan Province, the People’s Republic of China, on June 19, 2015.
| | Yulong Eco-Materials Limited |
| | | |
| | By: | /s/ Yulong Zhu |
| | Name: | Yulong Zhu |
| | Title: | Chief Executive Officer |
Pursuant to the requirements of the Securities Act, this Amendment No. 9 to the Registration Statement has been signed by the following persons in their capacities and on June 19, 2015.
| /s/ Yulong Zhu | | Chairman of the Board of Directors Chief Executive Officer (principal executive officer) |
Name: Yulong Zhu | |
| | | |
| /s/ Zan Wu | | Chief Financial Officer |
| Name: Zan Wu | | (principal financial officer and principal accounting officer) |
EXHIBIT INDEX
Exhibit Number | | Description of Document |
| 1.1 | † | Form of Underwriting Agreement |
| 3.1 | † | Memorandum and Articles of Association of the Registrant |
| 3.2 | † | Amended and Restated Memorandum and Articles of Association of the Registrant |
| 4.1 | † | Registrant’s Specimen Certificate for Ordinary Shares |
| 4.2 | † | Registration Rights Agreement between the registrant and other parties therein dated as of May 11, 2011 |
| 4.3 | † | Registration Rights Agreement between the registrant and other parties therein dated as of May 16, 2011 |
| 4.4 | | Form of Warrant to Underwriters and Advisor |
| 5.1 | | Opinion of Forbes Hare regarding the validity of the ordinary shares being registered |
| 10.1(a) | † | Exclusive Consulting and Operating Agreement, dated as of September 2, 2011, among Yulong WFOE, Yulong Bricks and the shareholders of Yulong Bricks |
| 10.1(b) | † | Amendment to Exclusive Consulting and Operating Agreement, dated as of April 21, 2014, among Yulong WFOE, Yulong Bricks and the shareholders of Yulong Bricks |
| 10.2(a) | † | Equity Pledge Agreement, dated as of September 2, 2011, among Yulong WFOE and the shareholders of Yulong Bricks |
| 10.2(b) | † | Amendment to Equity Pledge Agreement, dated as of April 21, 2014, among Yulong WFOE and the shareholders of Yulong Bricks |
| 10.3(a) | † | Option Agreement, dated as of September 2, 2011, among Yulong HK and the shareholders of Yulong Bricks |
| 10.3(b) | † | Amendment to Option Agreement, dated as of April 21, 2014, among Yulong HK, Yulong WFOE and the shareholders of Yulong Bricks |
| 10.4(a) | † | Voting Rights Proxy and Financial Supporting Agreement, dated as of September 2, 2011,among Yulong HK and the shareholders of Yulong Bricks |
| 10.4(b) | † | Amendment to Voting Rights Proxy and Financial Supporting Agreement, dated as of April 21, 2014, among Yulong HK, Yulong WFOE and the shareholders of Yulong Bricks |
| 10.5(a) | † | Exclusive Consulting and Operating Agreement, dated as of September 2, 2011, among Yulong WFOE, Yulong Concrete and the shareholders of Yulong Concrete |
| 10.5(b) | † | Amendment to Exclusive Consulting and Operating Agreement, dated as of April 21, 2014, among Yulong WFOE, Yulong Concrete and the shareholders of Yulong Concrete |
| 10.6(a) | † | Equity Pledge Agreement, dated as of September 2, 2011, among Yulong WFOE and the shareholders of Yulong Concrete |
| 10.6(b) | † | Amendment to Equity Pledge Agreement, dated as of April 21, 2014, among Yulong WFOE and the shareholders of Yulong Concrete |
| 10.7(a) | † | Option Agreement, dated as of September 2, 2011, among Yulong HK and the shareholders of Yulong Concrete |
| 10.7(b) | † | Amendment to Option Agreement, dated as of April 21, 2014, among Yulong HK, Yulong WFOE and the shareholders of Yulong Concrete |
| 10.8(a) | † | Voting Rights Proxy and Financial Supporting Agreement, dated as of September 2, 2011,among Yulong HK and the shareholders of Yulong Concrete |
| 10.8(b) | † | Amendment to Voting Rights Proxy and Financial Supporting Agreement, dated as of April 21, 2014, among Yulong HK, Yulong WFOE and the shareholders of Yulong Concrete |
| 10.9(a) | † | Exclusive Consulting and Operating Agreement, dated as of September 2, 2011, among Yulong WFOE, Yulong Transport and the shareholders of Yulong Transport |
| 10.9(b) | † | Amendment to Exclusive Consulting and Operating Agreement, dated as of April 21, 2014, among Yulong WFOE, Yulong Transport and the shareholders of Yulong Transport |
| 10.10 | † | Equity Pledge Agreement, dated as of September 2, 2011, among Yulong WFOE and the shareholders of Yulong Transport |
| 10.11(a) | † | Option Agreement, dated as of September 2, 2011, among Yulong HK and the shareholders of Yulong Transport |
| 10.11(b) | † | Amendment to Option Agreement, dated as of April 21, 2014, among Yulong HK, Yulong WFOE and the shareholders of Yulong Transport |
| 10.12(a) | † | Voting Rights Proxy and Financial Supporting Agreement, dated as of September 2, 2011,among Yulong HK and the shareholders of Yulong Transport |
| 10.12(b) | † | Amendment to Voting Rights Proxy and Financial Supporting Agreement, dated as of April 21, 2014, among Yulong HK, Yulong WFOE and the shareholders of Yulong Transport |
| 10.13(a) | † | Exclusive Consulting and Operating Agreement, dated as of September 2, 2011, among Yulong WFOE, Yulong Renewable and the shareholders of Yulong Renewable |
| 10.13(b) | † | Amendment to Exclusive Consulting and Operating Agreement, dated as of April 21, 2014, among Yulong WFOE, Yulong Renewable and the shareholders of Yulong Renewable |
| 10.14(a) | † | Equity Pledge Agreement, dated as of September 2, 2011, among Yulong WFOE and the shareholders of Yulong Renewable |
| 10.14(b) | † | Amendment to Equity Pledge Agreement, dated as of April 21, 2014, among Yulong WFOE and the shareholders of Yulong Renewable |
| 10.15(a) | † | Option Agreement, dated as of September 2, 2011, among Yulong HK and the shareholders of Yulong Renewable |
| 10.15(b) | † | Amendment to Option Agreement, dated as of April 21, 2014, among Yulong HK, Yulong WFOE and the shareholders of Yulong Renewable |
| 10.16(a) | † | Voting Rights Proxy and Financial Supporting Agreement, dated as of September 2, 2011,among Yulong HK and the shareholders of Yulong Renewable |
| 10.16(b) | † | Amendment to Voting Rights Proxy and Financial Supporting Agreement, dated as of April 21, 2014,among Yulong HK, Yulong WFOE and the shareholders of Yulong Renewable |
| 10.17(a) | † | English translation of Land Compensation Agreement dated January 15, 2007 |
| 10.17(b) | † | English translation of Land Compensation/Lease Agreement dated February 12, 2014 |
| 10.18(a) | † | English translation of Land Compensation Agreement dated January 8, 2009 |
| 10.18(b) | † | English translation of Land Compensation/Lease Agreement dated February 12, 2014 |
| 10.19 | † | English translation of Land Compensation Agreement dated June 6, 2012 |
| 10.20(a) | † | Employment Agreement between the registrant and Zan Wu dated July 28, 2014 |
| 10.20(b) | † | Restricted Stock Award Agreement between the registrant and Zan Wu dated January 27, 2015 |
| 10.21 | † | Employment Agreement between the registrant and Yulong Zhu dated January 27, 2015 |
| 10.22 | † | English translation of Product Processing Agreement between Yulong Bricks and Zhongping Nenghua Group Hongrui New Construction Materials Co., Ltd., dated January 8, 2011 |
| 10.23 | † | English translation of Product Processing Agreement between Yulong Concrete and Pingdingshan Chaoqiang Concrete Co., Ltd., dated December 17, 2012 |
| 10.24(a) | † | English translation of Agreement between Yingtao Miao and Yulong Concrete dated June 30, 2013 |
| 10.24(b) | † | English translation of Agreement between Yingtao Miao and Yulong Concrete dated December 31, 2014 |
| 10.25(a) | † | English translation of Agreement between Guangjian Zhu and Yulong Concrete dated June 30, 2013 |
| 10.25(b) | † | English translation of Agreement between Guangjian Zhu and Yulong Concrete dated December 31, 2014 |
| 10.26(a) | † | English translation of Agreement between Hu Zhu and Yulong Bricks dated June 30, 2013 |
| 10.26(b) | † | English translation of Agreement between Hu Zhu and Yulong Bricks dated December 31, 2014 |
| 10.27(a) | † | English translation of Agreement between Lei Zhu and Yulong Transport dated June 30, 2013 |
| 10.27(b) | † | English translation of Agreement between Lei Zhu and Yulong Concrete dated June 30, 2013 |
| 10.27(c) | † | English translation of Agreement between Lei Zhu and Yulong Renewable dated June 30, 2013 |
| 10.28(a) | † | English translation of Agreement between Yulong Zhu and Yulong Bricks dated June 30, 2013 |
| 10.28(b) | † | English translation of Agreement between Yulong Zhu and Yulong Bricks dated December 31, 2014 |
| 10.28(c) | † | English translation of Agreement between Yulong Zhu and Yulong Concrete dated June 30, 2013 |
| 10.28(d) | † | English translation of Agreement between Yulong Zhu and Yulong Renewable dated June 30, 2013 |
| 10.29 | † | Form of Lock-up Agreement |
| 10.30(a) | † | Director Offer Letter of the Registrant to Alice Io Wai Wu dated January 15, 2015 |
| 10.30(b) | † | Amended and Restated Offer Letter of the Registrant to Alice Io Wai Wu dated February 27, 2015 |
| 10.31(a) | † | Director Offer Letter of the Registrant to Michael W. Harlan dated February 27, 2015 |
| 10.31(b) | † | Indemnification Agreement between the Registrant and Michael W. Harlan dated February 27, 2015 |
| 10.32 | † | English translation of Commitment of Yulong Zhu dated February 5, 2015. |
| 10.33 | † | Indebtedness Conversion Agreement between the Registrant and Yingtao Miao, Guangjiang Zhu, Hu Zhu, Lei Zhu and Yulong Zhu, dated as of February 27, 2015 |
| 10.34 | † | English translation of Municipal Construction Wastes Disposal and Renewable Use Treatment Special Management Agreement between Yulong Renewable and Pingdingshan Housing and Urban-Rural Development Bureau, dated September 13, 2012 |
| 10.35(a) | † | English translation of Special Operating License granted by Pingdingshan Construction Wastes Management Office to Yulong Renewable, dated October 15, 2012 |
| 10.35(b) | † | English translation of Construction Wastes Disposal Qualification License granted by Pingdingshan Construction Wastes Management Office to Yulong Renewable, dated October 15, 2012 |
| 10.36 | | Escrow Agreement for Indemnification Fund |
| 21 | † | Subsidiaries of the registrant |
| 23.1 | † | Consent of Friedman LLP, an independent registered public accounting firm |
| 23.2 | | Consent of Forbes Hare (included in Exhibit 5.1) |
| 23.3 | | Consent of Allbright Law Offices |
| 23.4 | | Consent of LKP Global Law, LLP |
| 23.5 | † | Consent of Guoping Li |
| 23.6 | † | Consent of Baoming Yu |
| 23.7 | † | Consent of Hong Jiang |
| 23.8 | † | Consent of Michael W. Harlan |
| 23.9 | † | Consent of Alice Io Wai Wu |
| * | To be filed by amendment. |
| † | Previously filed. |
II-6
