Securities Registration: Employee Benefit Plan (s-8)
May 11 2018 - 4:05PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on May 11, 2018
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
DAQO NEW ENERGY CORP.
(Exact name of registrant as specified
in its charter)
Cayman Islands
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Not Applicable
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification Number)
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666 Longdu Avenue
Wanzhou, Chongqing 404000
People’s Republic of China
(86-23) 6486-6666
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
2018 Share Incentive Plan
(Full title of the plan)
Law Debenture Corporate Services Inc.
400 Madison Avenue, 4
th
Floor
New York, New York 10017
(212) 750-6474
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
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,” “smaller reporting company” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
Large accelerated filer
¨
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Accelerated filer
x
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Non-accelerated filer
¨
(Do not check if a smaller reporting company)
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Emerging growth company
¨
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Smaller reporting company
¨
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Copies to:
Ming Yang
Chief Financial Officer
Daqo New Energy Corp.
666 Longdu Avenue
Wanzhou, Chongqing 404000
People’s Republic of China
(86-23) 6486-6666
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Z. Julie Gao, Esq.
Will H. Cai, Esq.
Skadden, Arps, Slate, Meagher & Flom
LLP
c/o 42/F, Edinburgh Tower, The Landmark,
15 Queen’s Road Central
Hong Kong
(852) 3740-4700
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Calculation
of Registration Fee
Title of Securities to be
Registered
(1)
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Amount to
be
Registered
(2)
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Proposed
Maximum
Aggregate
Offering Price
per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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Ordinary Shares, par value
US$0.0001 per share
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38,600,000
(3)
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US$2.12
(3)
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US$81,839,720.00
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US$10,189.05
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(1)
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These shares may be represented by the Registrant’s ADSs, each of which represents 25 ordinary shares. The Registrants’
ADSs issuable upon deposit of the ordinary shares registered hereby have been registered under a separate registration statement
on Form F-6 (333-164310).
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(2)
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Represents ordinary shares issuable upon exercise of options and pursuant to other awards granted under the 2018 Share Incentive
Plan (the “Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement also covers an indeterminate number of additional shares which may be offered and issued to prevent
dilution from share splits, share dividends or similar transactions as provided in the Plan. Any ordinary shares covered by an
award granted under the Plan (or portion of an award) that terminates, expires or lapses for any reason will be deemed not to have
been issued for purposes of determining the maximum aggregate number of ordinary shares that may be issued under the Plan.
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(3)
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Represent the number of ordinary shares reserved for future award grants under the Plan, and the corresponding proposed maximum
offering price per share, which is estimated solely for the purposes of calculating the registration fee under Rule 457(h) and
Rule 457(c) under the Securities Act, is based on the average of the high and low prices for the Registrant’s American Depositary
Shares, or ADSs, as quoted on the New York Stock Exchange on May 1, 2018.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
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Item 1.
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Plan Information*
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Item 2.
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Registrant Information and Employee Plan Annual Information*
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* 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. The documents containing information specified in this Part I will be separately provided to the participants
covered by the Plan, as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents previously filed
by Daqo New Energy Corp. (the “Registrant”) with the Securities and Exchange Commission (the “Commission”)
are incorporated by reference herein:
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(a)
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The Registrant’s latest annual report on Form 20-F (File No. 001-34602) filed with the Commission on March 16, 2018 pursuant
to Section 13(a) of the Securities Exchange Act of 1934 (the “Exchange Act”);
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(b)
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The Registrant’s prospectus dated on March 26, 2018 (File No. 333-223754) filed with the Commission on April 11, 2018
pursuant to Rule 424 (b)(5) under the Securities Act of 1933, as amended (the “Securities Act”); and
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(c)
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The description of the Registrant’s ordinary shares incorporated by reference in the Registrant’s registration
statement on Form 8-A (File No. 001-34602) filed with the Commission on September 28, 2010, including any amendment and report
subsequently filed for the purpose of updating that description.
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All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this registration statement and
prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration
statement and to be part hereof from the date of filing of such documents. Any statement in a document incorporated or deemed to
be incorporated by reference in this registration statement will be deemed to be modified or superseded to the extent that a statement
contained in this registration statement or in any other later filed document that also is or is deemed to be incorporated by reference
modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as so modified or
superseded, to be a part of this registration statement.
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Item 4.
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Description of Securities
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not
applicable.
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Item 6.
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Indemnification of Directors and Officers
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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. The Registrant’s Fourth Amended and Restated Articles of Association,
adopted by its shareholders on December 16, 2016 and filed as Exhibit 1.1 to the annual report on Form 20-F (File No. 111-34602),
provide that the Registrant shall indemnify its directors and officers against actions, proceedings, costs, charges, expenses,
losses, damages or liabilities incurred by such persons in their capacity as such, except through their own willful neglect or
default.
Pursuant to the indemnification agreements,
the form of which was filed as Exhibit 10.2 to the Registrant’s registration statement on Form F-1, as amended (File No.
333-164307), 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.
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 also maintains a directors
and officers liability insurance policy for its directors and officers.
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Item 7.
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Exemption From Registration Claimed
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Not applicable.
See the Index to Exhibits attached hereto.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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 this registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to that information in the registration statement;
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Provided
,
however
,
that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Commission 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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(2)
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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.
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(3)
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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.
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(b)
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The undersigned Registrant hereby undertakes 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 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 that time shall be deemed to be the initial
bona fide
offering thereof.
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(c)
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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.
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SIGNATURES
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 Chongqing, China, on May 11, 2018.
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DAQO NEW ENERGY CORP.
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By:
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/s/ Longgen Zhang
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Name:
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Longgen Zhang
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Title:
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Chief Executive Officer and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints, severally and not jointly, Mr. Longgen Zhang 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 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 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
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Title
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Date
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/s/ Guangfu Xu
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Chairman of the Board of Directors
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May 11, 2018
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Guangfu Xu
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/s/ Xiang Xu
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Director
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May 11, 2018
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Xiang Xu
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/s/ Dafeng Shi
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Director
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May 11, 2018
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Dafeng Shi
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/s/ Longgen Zhang
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Director and Chief Executive Officer
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May 11, 2018
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Longgen Zhang
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(principal executive officer)
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/s/ Ming Yang
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Chief Financial Officer
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May 11, 2018
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Ming Yang
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(principal financial and accounting officer)
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/s/ Arthur Wong
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Director
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May 11, 2018
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Arthur Wong
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/s/ Rongling Chen
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Director
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May 11, 2018
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Rongling Chen
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/s/ Fumin Zhuo
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Director
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May 11, 2018
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Fumin Zhuo
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/s/ Minsong Liang
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Director
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May 11, 2018
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Minsong Liang
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/s/ Shuming Zhao
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Director
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May 11, 2018
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Shuming Zhao
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SIGNATURE OF AUTHORIZED REPRESENTATIVE
IN THE UNITED STATES
Pursuant to the Securities Act of 1933,
the undersigned, the duly authorized representative in the United States of Daqo New Energy Corp., has signed this registration
statement in New York on May 11, 2018.
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Authorized U.S. Representative
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By:
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/s/ Giselle Manon
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Name:
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Giselle Manon, on behalf of
Law Debenture Corporate Services Inc.
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Title:
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Service of Process Officer
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EXHIBIT INDEX
Exhibit Number
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Description
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4.1
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Fourth Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 1.1 to the annual report on Form 20-F filed on March 31, 2016 (File No. 001-34602))
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4.2
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Registrant’s Specimen Certificate for Ordinary Shares (incorporated herein by reference to Exhibit 4.1 to the registration statement on Form F-1, as amended (File No. 333-164307))
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4.3
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Deposit Agreement among the Registrant, JPMorgan Chase Bank, N.A. as depositary, and holders and beneficial owners of American Depositary Shares evidenced by American Depositary Receipts issued thereunder (incorporated herein by reference to Exhibit 4.3 on Form S-8 (File No. 333-172234))
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4.4
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Amended and Restated Deposit Agreement among the Registrant, JPMorgan Chase Bank, N.A. as depositary, and holders and beneficial owners of American Depositary Shares evidenced by American Depositary Receipts issued thereunder dated October 11, 2016 (incorporated herein by reference to Exhibit (a) to the Post-Effective Amendment No. 2 to Form F-6 Registration Statement filed with the Securities and Exchange Commission on October 11, 2016 (File No. 333-164310))
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5.1*
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Opinion of Travers Thorp Alberga, Cayman Islands counsel to the Registrant, regarding the legality of the ordinary shares being registered
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10.1*
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2018 Share Incentive Plan
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23.1*
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Consent of Deloitte Touche Tohmatsu Certified Public Accountants LLP
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23.2*
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Consent of Travers Thorp Alberga (included in Exhibit 5.1)
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24.1*
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Power of Attorney (included on signature page hereto)
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* Filed herewith.
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