Securities Registration Statement (simplified Form) (s-3/a)
December 27 2018 - 7:59AM
Edgar (US Regulatory)
As filed with the S
ecurities and Exchange Commission on December
27, 2018.
Registration No. 333-228734
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
ACM
RESEARCH, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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94-3290283
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(State or other
jurisdiction of incorporation or
organization)
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(I.R.S.
Employer Identification Number)
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42307 Osgood
Road, Suite I, Fremont, California 94539
(510)
445-3700
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
David H.
Wang
Chief Executive
Officer and President
ACM Research,
Inc.
42307 Osgood
Road, Suite I, Fremont, California 94539
(510)
445-3700
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
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Mark L. Johnson
Bella Zaslavsky
K&L Gates LLP
One Lincoln Street, Boston, Massachusetts 02111
(617) 261-3100
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Approximate date of commencement of proposed sale to the
public:
From time to time after this Registration Statement
is declared effective.
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 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, 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.D. or a post-effective amendment thereto that shall become
effective on filing with the 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
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, smaller reporting
company, or an emerging growth 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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☐
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Accelerated filer
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☐
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Non-accelerated
filer
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☐
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Smaller reporting company
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☒
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Emerging growth
company
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☒
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities
Act.
☒
EXPLANATORY NOTE
This
Amendment No. 1 to Registration Statement on Form S-3 (File No.
333-228734) of ACM Research, Inc. is being filed solely for the
purpose of filing Exhibit 5.01. Accordingly, this Amendment No. 1
consists of only the facing page, this explanatory note and Part II
of the Registration Statement. The prospectus constituting Part I
of the Registration Statement is unchanged and has therefore been
omitted.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The
following (other than the fees of the Securities and Exchange
Commission, or SEC, and the Financial Industry Regulatory
Authority, or FINRA) are estimates of the expenses that the
registrant may incur in connection with the offering and sale of
the securities being registered hereby. All such expenses are to be
paid by the registrant.
SEC registration
fee
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$
12,120
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FINRA filing
fee
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15,500
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Accounting fees and
expenses
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*
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Exchange listing
fee
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*
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Legal fees and
expenses
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*
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Printing
expenses
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*
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Transfer agent fees
and expenses
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*
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Trustee fees and
expenses
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*
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Warrant agent fees
and expenses
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*
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Miscellaneous
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*
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Total
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*
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___________
*
Because these
amounts are based on the securities offered and the number of
issuances, they cannot be estimated at this time and will be
reflected in the applicable prospectus supplements.
Item 15. Indemnification of Directors and Officers
Sections
145 and 102(b)(7) of the General Corporation Law of the State of
Delaware provide that a corporation may indemnify any person made a
party to an action by reason of the fact that the person was a
director, officer, employee or agent of the corporation or is or
was serving at the request of a corporation against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person
in connection with such action if the person acted in good faith
and in a manner the person reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe the person’s conduct was unlawful, except that, in
the case of an action by or in right of the corporation, no
indemnification may generally be made in respect of any claim as to
which the person is adjudged to be liable to the
corporation.
The
registrant’s charter contains provisions that eliminate, to
the maximum extent permitted by the General Corporation Law of the
State of Delaware, the personal liability of the registrant’s
directors for monetary damages for breach of their fiduciary duties
as directors. The registrant’s bylaws provide that the
registrant must indemnify its directors and officers and may
indemnify its employees and other agents to the fullest extent
permitted by the General Corporation Law of the State of
Delaware.
The
registrant has entered into indemnification agreements with its
directors and executive officers, in addition to the
indemnification provided by its bylaws, and intends to enter into
indemnification agreements with any new directors and executive
officers in the future.
The
registrant has purchased and intends to maintain insurance on
behalf of any person who is or was a director or officer of the
registrant against any loss arising from any claim asserted against
the person and incurred by the person in any such capacity, subject
to certain exclusions.
In any
underwriting agreement the registrant enters into in connection
with the offering of securities being registered hereby, the
underwriters may agree to indemnify, under certain conditions, the
registrant’s directors and officers (as well as certain other
persons) against certain liabilities arising in connection with
such offering.
Item 16. Exhibits
Exhibit No.
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Description
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1.01*
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Form of
Underwriting Agreement
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Restated
Certificate of Incorporation of ACM Research, Inc., as
amended
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Restated
Bylaws of ACM Research, Inc.
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Restated
Certificate of Incorporation of ACM Research, Inc., as
amended
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Restated
Bylaws of ACM Research, Inc.
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Second
Amended and Restated Registration Rights Agreement between ACM
Research, Inc. and certain of its stockholders
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Form of
Class A Common Stock Certificate
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4.05*
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Form of
Preferred Stock Certificate
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4.06*
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Form of
Senior Indenture
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4.07*
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Form of
Subordinated Indenture
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4.08*
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Form of
Senior Note
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4.09*
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Form of
Subordinated Note
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4.10*
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Form of
Warrant
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4.11*
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Form of
Warrant Agreement
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4.12*
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Form of
Unit Agreement
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Opinion
of K&L Gates LLP
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Consent
of BDO China Shu Lun Pan Certified Public Accountants
LLP
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23.02
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Consent
of K&L Gates LLP (included in Exhibit 5.01)
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24.01
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Powers
of Attorney (included on the signature page of the Registration
Statement as originally filed)
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25.01*
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Statement
of Eligibility on Form T
‑
1 under the Trust
Indenture Act of 1939 of the Trustee under the Senior
Indenture
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25.02*
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Statement
of Eligibility on Form T
‑
1 under the Trust
Indenture Act of 1939 of the Trustee under the Subordinated
Indenture
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*
To be filed by
amendment or incorporated by reference in connection with an
offering of securities.
Item 17. 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 of
1933;
(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) that, 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 the 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 percent 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 (a)(1)(i),
(a)(1)(ii), and (a)(1)(iii) 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
SEC by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 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 a part of the
registration statement.
(2)
That, for the
purpose of determining any liability under the Securities Act of
1933, 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 that remain unsold at the termination
of the offering.
(4)
That, for the
purpose of determining liability under the Securities Act of 1933
to any purchaser:
(A)
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
(B)
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 of 1933 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 that
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.
(5)
That, for the
purpose of determining liability of the registrant under the
Securities Act of 1933 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.
(b)
The undersigned
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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 initial bona
fide offering thereof.
(c)
Insofar as
indemnification for liabilities arising under the Securities Act of
1933 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.
(d)
The undersigned
registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the SEC
under Section 305(b)(2) of the Trust Indenture Act of
1939.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 1 to Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fremont, State of California, on
December 26, 2018.
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ACM RESEARCH,
INC.
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By:
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/s/
David H. Wang
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David H.
Wang
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Chief Executive
Officer and President
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to Registration Statement has been signed by the
following persons on behalf of the registrant in the capacities
indicated on December 26, 2018.
Signature
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Title
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/s/
David H.
Wang
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Chief
Executive Officer, President
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David
H. Wang
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and
Chair of the Board
(Principal
Executive Officer)
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*
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Interim
Chief Financial Officer,
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Lisa
Feng
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Chief
Accounting Officer and Treasurer
(Principal Financial and Accounting
Officer)
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*
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Director
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Haiping
Dun
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*
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Director
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Chenming
Hu
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*
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Director
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Tracy
Liu
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*
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Director
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Yinan
Xiang
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Director
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Zhengfan
Yang
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*
By:
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/s/
David H.
Wang
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David
H. Wang, Attorney-in-fact
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