UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
NO. 3
TO
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CHINA
MARINE FOOD GROUP LIMITED
(Exact
Name of Registrant as Specified in its Charter)
NEVADA
|
2092
|
87-0640467
|
(State
or Jurisdiction of
Incorporation
or Organization)
|
(Primary
Standard Industrial
Classification
Code
Number)
|
(I.R.S.
Employer Identification
No.)
|
Da
Bao Industrial Zone, Shishi City
Fujian,
China
362700
86-595-8898-7588
(Address
and Telephone Number of Principal Executive Offices)
Steve
W. Schuster, Esq.
McLaughlin
& Stern, LLP
260
Madison Avenue, 18
th
Floor
New
York, NY 10016
(212)
448-1100
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box:
o
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, other
than the securities offered only in connection with dividend or reinvestment
plans, check the following box:
x
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 earliest effective
registration statement for the same offering.
o
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.
o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box:
o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 413(b) under the Securities Act, check the
following box:
o
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.
Large Accelerated Filer
¨
|
Accelerated Filer
¨
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Non-Accelerated
Filer
|
Smaller Reporting Company
x
|
CALCULATION
OF REGISTRATION FEE
Title of Each Class
of Securities to be
Registered
|
|
Amount to be
Registered
(1)(3)
|
|
|
Proposed
Maximum
Offering Price Per
Unit(2)(3)
|
|
|
Proposed
Maximum
Aggregate
Offering
Price(2)
|
|
|
Amount of
Registration
Fee (4)
|
|
Common
Stock, par value $0.001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
Preferred
Stock, par value $0.001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
Depository
Shares(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
Warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
Rights
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
Units
|
|
|
|
|
|
|
|
|
|
|
|
|
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N/A
|
|
Total
|
|
|
|
|
|
|
|
|
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$
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40,000,000
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|
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$
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2,232
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(6)
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(1)
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There
are being registered hereunder such indeterminate (i) number of shares of
common stock and preferred stock, (ii) number of depository shares to
purchase preferred stock, (iii) number of warrants to purchase common
stock, preferred stock or other securities registered hereunder, (iv)
number of rights to purchase common stock or preferred stock and (v)
number of units as shall have an aggregate initial offering price not to
exceed $40,000,000. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder. The securities registered also include
such indeterminate numbers of shares of common stock, preferred stock and
depository shares as may be issued upon conversion of or exchange for
preferred stock that provide for conversion or exchange, upon exercise of
warrants or rights or pursuant to the antidilution provisions of any such
securities. The securities registered also include, pursuant to
Rule 416 under the Securities Act, such additional number of shares of
common stock that may become issuable as a result of any stock split,
stock dividends or similar event.
|
(2)
|
The
proposed maximum initial offering price per security or unit will be
determined, from time to time, by the registrant in connection with the
issuance by the registrant of the securities registered
hereunder.
|
(3)
|
The
amount to be registered, proposed maximum aggregate offering price per
unit and proposed maximum aggregate offering price are not specified as to
each class of security pursuant to General Instruction II.D. of Form S-3
under the Securities Act.
|
(4)
|
With
respect to securities to be offered for sale by the Registrant in the
primary offering, the registration fee is calculated in accordance with
Rule 457(o) of the Securities Act of
1933.
|
(5)
|
Each
depositary share will be issued under a deposit agreement, will represent
an interest in a fractional share or multiple shares of preferred stock
and will be evidenced by a depositary
receipt.
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(6)
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Pursuant
to Rule 457(p) under the Securities Act of 1933, filing fees of
$2,232 have already been paid in connection with a Registration Statement
on Form S-3 (File No. 333-161910 ) filed by China Marine Food
Group Ltd. on September 14, 2009, No additional registration
fee has been paid with respect to this offering
.
|
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 Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this Prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and we are not soliciting offers to buy these securities in any
state where the offer or sale is not permitted.
Subject
to Completion
Preliminary
Prospectus Dated December 10 , 2009
$40,000,000
CHINA
MARINE FOOD GROUP LIMITED
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
RIGHTS
DEPOSITORY
RECEIPTS
UNITS
We may
offer common stock, preferred stock, depository shares, warrants and/or rights,
either individually or in units, from time to time in one or more offerings in
amounts, at prices and on terms to be determined in light of market conditions
at the time of sale. We may also offer (i) common stock or preferred
stock upon conversion of preferred stock or (ii) common stock, preferred stock
or depository shares upon the exercise of warrants or rights.
Each time
we sell these securities, we will provide a supplement to this prospectus that
contains specific information about the offering. The supplement may
also add, update or change information contained in this
prospectus. You should carefully read this prospectus and any
supplement before you invest.
We may
offer and sell these securities, from time to time, to or through one or more
underwriters, dealer and agents, or directly to purchasers on a continuous or
delayed basis, at prices and on other terms to be determined at the time of
offering.
Our
common stock is listed on the NYSE Amex LLC and traded under the symbol
“CMFO.” On December 9 , 2009, the last reported sale price for our
common stock was $ 7.86 per share. Before you invest, you should carefully
read this prospectus, any applicable prospectus supplement and information
described under the headings “Where You Can Find More Information” and
“Incorporation by Reference.”
An
investment in our securities involves a high degree of risk. You should
carefully consider the “Risk Factors” that are incorporated by reference in this
prospectus from our most recent annual report on Form 10-K and our other
filings made with the Securities and Exchange Commission or that may be
contained in any supplements to this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The
date of this prospectus is____________________, 2009.
TABLE
OF CONTENTS
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PAGE
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ABOUT
THIS PROSPECTUS
|
3
|
WHERE
YOU CAN FIND MORE INFORMATION
|
3
|
INCORPORATION
BY REFERENCE
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4
|
NOTE
ON FORWARD-LOOKING STATEMENTS
|
5
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COMPANY
OVERVIEW
|
5
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RISK
FACTORS
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6
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USE
OF PROCEEDS
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6
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DESCRIPTION
OF CAPITAL STOCK
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7
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DESCRIPTION
OF DEPOSITORY SHARES
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9
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DESCRIPTION
OF WARRANTS
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12
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DESCRIPTION OF
RIGHTS
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14
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DESCRIPTION
OF UNITS
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16
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LEGAL
OWNERSHIP OF SECURITIES
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18
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PLAN
OF DISTRIBUTION
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22
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LEGAL
MATTERS
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24
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EXPERTS
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24
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or the SEC, using a "shelf" registration process. Under
this shelf registration process, from time to time, we may sell securities in
one or more offerings. We have provided to you in this prospectus a general
description of the securities we may offer. Each time we sell securities under
this shelf registration process, we will provide a prospectus supplement that
will contain specific information about the terms of the offering. We may also
add, update or change in the prospectus supplement any of the information
contained in this prospectus. To the extent there is a conflict between the
information contained in this prospectus and the prospectus supplement, you
should rely on the information in the prospectus supplement; provided that if
any statement in one of these documents is inconsistent with a statement in
another document having a later date — for example, a document incorporated by
reference in this prospectus or any prospectus supplement – the statement in the
document having the later date modifies or supersedes the earlier
statement.
As
permitted by the rules and regulations of the SEC, the registration statement
that contains this prospectus includes additional information not contained in
this prospectus. You may read the registration statement and the other reports
we file with the SEC at the SEC's web site or at the SEC's offices described
below under the heading "Where You Can Find More Information."
Except as
otherwise indicated by the context, references in this prospectus
to:
“China
Marine,” “Company,” “we,” “us” or “our” are references to the combined business
of China Marine and its direct and indirect subsidiaries
“Ocean
Technology” means Ocean Technology (China) Company Limited (formerly Nice
Enterprise Trading H.K. Co., Limited)
“Rixiang”
means Shishi Rixiang Marine Foods Co., Ltd.
“Mingxiang”
means Shishi Huabao Mingxiang Foods Co., Ltd.
“Jixiang”
means Shishi Huabao Jixiang Water Products Co., Ltd.
“U.S.
Dollar,” “$” and “US$” means the legal currency of the United States of
America.
“RMB”
means Renminbi, the legal currency of China.
“China”
or the “PRC” are references to the People’s Republic of China.
WHERE
YOU CAN FIND MORE INFORMATION
We are
subject to the informational requirements of the Exchange Act and are required
to file annual, quarterly and other reports, proxy statements and other
information with the SEC. You may inspect and copy these reports, proxy
statements and other information at the public reference facilities maintained
by the SEC in Washington, D.C. (100 F Street NE, Room 1580, Washington, D.C.
20549). Copies of such materials can be obtained from the SEC's public reference
section at prescribed rates. You may obtain information on the operation of the
public reference rooms by calling the SEC at (800) SEC-0330 or on the SEC
website located at http://www.sec.gov.
Information
about us is also available at our website at http://www.china-marine.cn.
However, information contained on our website does not constitute a part of this
prospectus.
INCORPORATION
BY REFERENCE
The SEC
allows us to incorporate by reference information that we file with them, which
means that we can disclose important information to you by referring you to
those other documents. The information incorporated by reference is an important
part of this prospectus, and information we file later with the SEC will
automatically update and, where applicable, supersede any information contained
in this prospectus or incorporated by reference in this prospectus.
We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act but prior to the termination of any offering of securities made by this
prospectus (other than any portion of such documents that are not deemed "filed"
under the Exchange Act in accordance with the Exchange Act and applicable SEC
rules):
|
·
|
our
annual report on Form 10-K for the year ended December 31, 2008; our
quarterly reports on Form 10-Q for the quarters ended March 31, 2009 ,
June 30, 2009 and September 30, 2009
;
|
|
·
|
our
current reports on Form 8-K filed on January 5, 2009, February 3, 2009,
March 3, 2009, August 17, 2009, November 12, 2009 and December 2,
2009 ; and
|
|
·
|
the
description of our common stock, $0.001 par value per share, contained in
the Section entitled "Description of Registrant's Securities to be
Registered" contained in our Registration Statement on Form 8-A filed
with the SEC on July 28, 2009 including any amendment or report filed for
the purpose of updating such
descriptions.
|
Upon written or oral request, we will
provide without charge to each person, including any beneficial owner, to whom
this prospectus is delivered, a copy of any or all of such documents which are
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the documents that
this prospectus incorporates). Written or oral requests for copies should be
directed to:
Marco Hon
Wai, Ku (Chief Financial Officer)
China
Marine Food Group Limited
Suite
815, 8
th
Floor,
Ocean Centre, Harbour City
S. Canton
Road, Tsimshatsui, Kowloon, HONG KONG
Telephone:
852-2111-8696
Statements
contained in this prospectus and the documents incorporated by reference herein
referring to the contents of any contract or other document are not necessarily
complete. Where such contract or other document is listed as an exhibit to
the Registration Statement on Form S-3, of which this prospectus forms a
part, or any document incorporated by reference therein, each such statement is
qualified by the provisions in such exhibit, to which reference is hereby
made.
NOTE
ON FORWARD-LOOKING STATEMENTS
Some of
the statements under "Company Overview," "Risk Factors" and elsewhere in this
prospectus may include forward-looking statements that reflect our current views
with respect to future events and financial performance. These statements
include forward-looking statements both with respect to us specifically and our
business sector in general. These statements are made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995.
Statements that include the words "expect," "intend," "plan," "believe,"
"project," "estimate," "may," "should," "anticipate," "will" and similar
statements of a future or forward-looking nature identify forward-looking
statements for purposes of the federal securities laws or
otherwise.
All
forward-looking statements address matters that involve risks and uncertainties.
Accordingly, there are or will be important factors that could cause our actual
results to differ materially from those indicated in these statements. We
believe that these factors include but are not limited to, those factors set
forth in our most recent Annual Report on Form 10-K under the captions "Risk
Factors," "Business," "Legal Proceedings," "Management's Discussion and Analysis
of Financial Condition and Results of Operations," and "Quantitative and
Qualitative Disclosures About Market Risk," and those set forth in our most
recent Quarterly Report on Form 10-Q under the caption "Management's Discussion
and Analysis of Financial Condition and Results of Operations," all of which you
should review carefully. Please consider our forward-looking statements in light
of those risks as you read this prospectus and any prospectus supplement. We
undertake no obligation to publicly update or review any forward-looking
statement, whether as a result of new information, future developments or
otherwise.
If one or
more of these or other risks or uncertainties materialize, or if our underlying
assumptions prove to be incorrect, actual results may vary materially from what
we project. Any forward-looking statements you read in this prospectus reflect
our views as of the date of this prospectus with respect to future events and
are subject to these and other risks, uncertainties and assumptions relating to
our operations, results of operations, growth strategy and liquidity. All
subsequent written and oral forward-looking statements attributable to us or
individuals acting on our behalf are expressly qualified in their entirety by
this paragraph. Before making an investment decision, you should specifically
consider all of the factors identified in this prospectus that could cause
actual results to differ.
COMPANY
OVERVIEW
Through
our direct, wholly owned subsidiary, Ocean Technology (China) Company Limited
(formerly Nice Enterprise Trading H.K. Co., Limited), and its subsidiaries –
Shishi Rixiang Marine Foods Co., Ltd., Shishi Huabao Jixiang Water Products Co.,
Ltd. and Shishi Huabao Mingxiang Foods Co., Ltd., we engage in the business of
processing, distribution and sale of processed seafood based snack foods, as
well as the sale of fresh and frozen marine catch. Our objective is to establish
ourselves as a leading producer of processed seafood products in the PRC and
overseas markets.
Our dried
and flavored seafood based snack foods are predominantly sold under our
registered trademark, the “Mingxiang” brand. These products are sold in seven
provinces in the PRC, including Fujian, Guangdong, Jiangsu, Shandong, Zhejiang
and Sichuan and in turn sub-distributed to 2,200 retail points in the PRC
(including major supermarkets and retailers such as Wal-Mart and Carrefour)
throughout these provinces. Our frozen processed seafood products are sold to
both domestic and overseas customers. Founded in 1994, China Marine has grown
steadily and positioned its "Mingxiang" brand as a category leader. We have
received "Famous Brand" and "Green Food" awards.
Our
marine catch is sold to customers in Liaoning, Fujian and Shandong Provinces,
some of whom directly export the marine catch to South Korea and
Taiwan.
Our
business premises, including our production plant, cold storage facility, office
tower and staff dormitory, are located close to Xiangzhi Port, the largest
fishing port in Fujian Province, which is one of the largest coastal provinces
in the PRC and a vital navigation hub between the East China Sea and the South
China Sea.
Our
principal executive offices are located at Da Bao Industrial Zone, Shishi
City
,
Fujian, China
,
362700, and our telephone
number at that location is 86-595-8898-7588.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an investment
decision, you should carefully consider any risk factors set forth in the
applicable prospectus supplement and the documents incorporated by reference in
this prospectus, including, but not limited to, our most recent annual report on
Form 10-K and most recent report on Form 10-Q, and the applicable prospectus
supplement, as well as other information we include or incorporate by reference
in this prospectus and in the applicable prospectus supplement. The risks and
uncertainties not presently known to us or that we currently deem immaterial may
also affect our business operations.
For more
information about our SEC filings, please see “Where You Can Find More
Information” and “Incorporation By Reference” on pages 3 and 4 of this
prospectus. See also “Note On Forward-Looking Statements” on page 5
of this prospectus
.
USE
OF PROCEEDS
We will
retain broad discretion over the use of the net proceeds to us from any sale of
our securities under this prospectus. Except as described in any prospectus
supplement, we currently anticipate that the net proceeds from any sale of our
securities under this prospectus will be used for general corporate purposes,
including but not limited to working capital and capital expenditures. We may
also use the net proceeds to fund acquisitions of businesses. Pending
application of the net proceeds, we may initially invest the net proceeds or
apply them to reduce short-term indebtedness. If we intend to use the net
proceeds of any offering to repay outstanding debt, we will provide details
about the debt we intend to repay in a prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK
COMMON
STOCK
As
of December 10 , 2009, we had 23,382,512 shares of common
stock outstanding. Our authorized capital stock consists of
100,000,000 common shares, $0.001 par value per share and 1,000,000 preferred
shares, par value $0.001 per share. All shares of common stock are entitled to
share equally in dividends from sources legally available, therefore, when, as
and if declared by our board of directors, and upon our liquidation or
dissolution, whether voluntary or involuntary, to share equally in our assets
available for distribution to out stockholders.
Our board
of directors is authorized to issue additional shares of common stock not to
exceed the amount authorized by our Amended Articles of Incorporation, on such
terms and conditions and for such consideration as our board may deem
appropriate without further stockholder action. However, the board of directors
shall maintain a reserve from its duly authorized shares of common stock to
allow for the exercise of the warrants issued pursuant to the Securities
Purchase Agreement.
VOTING
RIGHTS
Each
holder of common stock is entitled to one vote per share on all matters on which
such stockholders are entitled to vote. Since the shares of common stock do not
have cumulative voting rights, the holders of more than 50% of the shares voting
for the election of directors can elect all the directors if they choose to do
so and, in such event, the holders of the remaining shares will not be able to
elect any person to our board of directors.
DIVIDEND
POLICY
Pursuant
to a Stock Purchase Agreement with Halter Financial Investments, L.P. dated
September 13, 2007, we paid a special cash dividend in the aggregate amount of
$392,028, or $0.364 per share, to holders of our common stock outstanding as of
September 12, 2007.
Other
than the cash dividend describe above, we have never paid or declared dividends.
However, holders of our common stock are entitled to dividends if declared by
the board of directors out of funds legally available. We do not, however,
anticipate the declaration or payment of any dividends in the foreseeable
future. We intend to retain earnings, if any, to finance the development and
expansion of our business. Future dividend policy will be subject to the
discretion of the board of directors and will be contingent upon future
earnings, if any, our financial condition, capital requirements, general
business conditions and other factors. Therefore, there can be no assurance that
any dividends of any kind will ever be paid.
PREFERRED
STOCK
We are
authorized to issue up to 1,000,000 shares of $0.001 par value preferred stock.
We have no shares of preferred stock outstanding. Under our Amended Articles of
Incorporation, our board of directors has the power, without further action by
the holders of the common stock, to determine the relative rights, preferences,
privileges and restrictions of the preferred stock, and to issue the preferred
stock in one or more series as determined by the board of directors. The
designation of rights, preferences, privileges and restrictions could include
preferences as to liquidation, redemption and conversion rights, voting rights,
dividends or other preferences, any of which may be dilutive of the interest of
the holders of the common stock.
WARRANTS
In
November 2007, we have granted a group of accredited investors three-year
warrants to purchase up to 1,239,888 shares of our common stock exercisable at
any time at a price equal to $4.1782 per share. As of December 10,
2009 warrants to purchase 660,480 shares of common stock have
been exercised pursuant to the cashless exercise provisions of such
warrants .
We issued
warrants to Sterne Agee & Leach, Inc.’s designee, for the purchase of up to
an aggregate of 557,950 shares of our common stock, which warrants are for a
term of three years from issuance and have an exercise price of $4.1782 per
share or on a cashless exercise basis.
Our
consultants also received three-year warrants to purchase up to an aggregate of
371,966 shares of our common stock, which may be exercised at any time at a
price equal to $4.1782 per share.
The
exercise price of the foregoing warrants was determined based on the offering
price of our common stock sold in the private placement transaction completed on
November 17, 2007.
LISTING
Our
common stock is listed on the NYSE Amex LLC and traded under the symbol
“CMFO.”
TRANSFER
AGENT AND REGISTRAR
The
transfer agent and registrar for the common stock is
Interwest Transfer
Company, Inc. Their mailing address is 1981 East 4800 South, Suite 100, Salt
Lake City, Utah, 84117. Their phone number is (801) 272-9294.
DESCRIPTION
OF DEPOSITARY SHARES
The
descriptions below and in any prospectus supplement of certain provisions of the
deposit agreement and depositary receipts summarize the material terms of these
documents. Because these summaries are not complete, you should refer to the
form of deposit agreement and form of depositary receipts relating to each
series of the preferred stock.
General
We may,
at our option, elect to have shares or fractional shares of preferred stock be
represented by depositary shares. We will deposit the shares of any series of
preferred stock underlying the depositary shares under a separate deposit
agreement (which we refer to as a "deposit agreement") between us and a bank or
trust company selected by us (which we refer to as the "preferred stock
depositary"). We will include the name and address of the preferred stock
depositary for any depositary shares in the applicable prospectus supplement.
Subject to the terms of the deposit agreement, each owner of a depositary share
will be entitled, proportionately, to all the rights, preferences and privileges
of the preferred stock represented by that depositary share, including dividend,
voting, redemption, conversion, exchange and liquidation rights.
The
depositary shares will be evidenced by depositary receipts issued pursuant to
the deposit agreement. Each depositary share will represent the applicable
interest in a number of shares of a particular series of preferred stock
described in the applicable prospectus supplement.
A holder
of depositary shares will be entitled to receive the number of whole shares or
fractional shares of preferred stock underlying the holder’s depositary shares.
If the depositary receipts delivered by the holder evidence a number of
depositary shares in excess of the whole number of shares of preferred stock to
be withdrawn, the depositary will deliver to the holder the number of whole
shares of preferred stock to be withdrawn, together with a new depositary
receipt evidencing the excess number of depositary shares.
Dividends
and Other Distributions
The
preferred stock depositary will distribute all cash dividends or other cash
distributions on the preferred stock to the record holders of depositary
receipts in proportion, insofar as possible, to the number of depositary shares
owned by the holders.
If
we distribute property other than cash with respect to the preferred stock, the
preferred stock depositary will distribute property received by it to the record
holders of depositary receipts in proportion, insofar as possible, to the number
of depositary shares owned by the holders, unless the preferred stock depositary
determines that it is not feasible to make the distribution. In this event, the
preferred stock depositary may, with our approval, adopt any method it deems
equitable and practicable for the purpose of effecting the distribution,
including a public or private sale of the property and distribution of the net
proceeds from the sale to the record holders of the depositary
receipts.
The
amount so distributed in any of the circumstances described above will be
reduced by any amount required to be withheld by us or the preferred stock
depositary on account of taxes.
Conversion
and Exchange
We will
describe any terms relating to the conversion or exchange of any series of
preferred stock underlying the depositary shares in the applicable prospectus
supplement. If any preferred stock underlying the depositary shares is subject
to provisions relating to its conversion or exchange, each record holder of
depositary shares will have the right or obligation to convert or exchange the
depositary shares pursuant to the terms thereof.
Redemption
of Depositary Share
If
preferred stock underlying the depositary shares is subject to redemption, the
depositary shares will be redeemed from the proceeds received by the preferred
stock depositary as a result of the redemption, in whole or in part, of the
preferred stock held by the preferred stock depositary. The redemption price per
depositary share will be equal to the aggregate redemption price payable with
respect to the number of shares or fractional shares of preferred stock
underlying that depositary share. Whenever we redeem preferred stock from the
preferred stock depositary, the preferred stock depositary will redeem as of the
same redemption date a proportionate number of depositary shares representing
the shares of preferred stock that were redeemed. If less than all the
depositary shares are to be redeemed, the depositary shares to be redeemed will
be selected by lot or proportionately as we may determine.
After the
date fixed for redemption, the depositary shares called for redemption will no
longer be deemed to be outstanding and all rights of the holders of the
depositary shares will cease, other than the right to receive the redemption
price upon redemption. Any funds deposited by us with the preferred stock
depositary for any depositary shares which the holders fail to redeem shall be
returned to us after a period of two years from the date the funds are
deposited.
Voting
Upon
receipt of notice of any meeting at which the holders of any shares of preferred
stock underlying the depositary shares are entitled to vote, the preferred stock
depositary will mail the information contained in the notice to the record
holders of the depositary receipts. Each record holder of depositary receipts on
the record date (which will be the same date as the record date for the
preferred stock) will be entitled to instruct the preferred stock depositary as
to the exercise of the voting rights pertaining to the number of shares or
fractional shares of preferred stock underlying that holder's depositary shares.
The preferred stock depositary will endeavor, as far as practicable, to vote the
number of shares of preferred stock underlying the depositary shares in
accordance with those instructions, and we will agree to take all reasonable
action which may be deemed necessary by the preferred stock depositary in order
to enable the preferred stock depositary to do so. The preferred stock
depositary will abstain from voting the preferred stock to the extent it does
not receive specific written instructions from holders of depositary receipts
representing the preferred stock.
Record
Date
Whenever:
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any
cash dividend or other cash distribution becomes payable, any distribution
other than cash is made or any rights, preferences or privileges are
offered with respect to the preferred
stock;
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the
preferred stock depositary receives notice of any meeting at which holders
of preferred stock are entitled to vote or of which holders of preferred
stock are entitled to notice;
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the
preferred stock depositary receives notice of the mandatory conversion of
or any election on our part to call any preferred stock for redemption,
the preferred stock depositary shall in each case fix a record date (which
shall be the same as the record date for the preferred stock) for the
determination of the holders of depositary
receipts;
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who
shall be entitled to receive the dividend, distribution, rights,
preferences or privileges or the net proceeds of their
sale;
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who
shall be entitled to give instructions for the exercise of voting rights
at any meeting; or
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who
shall be entitled to receive notice of the meeting or of the redemption or
conversion, subject to the provisions of the deposit
agreement.
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Amendment
and Termination of the Deposit Agreement
We and
the preferred stock depositary may amend the form of depositary receipt and any
provision of the deposit agreement at any time. However, unless the applicable
prospectus supplement states otherwise, any amendment which imposes or increases
any fees, taxes or other charges payable by the holders of depositary receipts
(other than taxes and other governmental charges, fees and other expenses
payable by the holders as described below under "Charges of Preferred Stock
Depositary"), or which otherwise prejudices any substantial existing right of
holders of depositary receipts, will not take effect as to outstanding
depositary receipts until the expiration of 90 days after notice of the
amendment has been mailed to the record holders of outstanding depositary
receipts.
Charges
of Preferred Stock Depository
Except
for taxes, transfer taxes, governmental charges and any other charges that are
expressly provided in the deposit agreement to be at the expense of holders of
depositary receipts or persons depositing preferred stock, we will pay all
charges of the preferred stock depositary including charges in connection
with:
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the
initial deposit of the preferred
stock;
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the
initial issuance of the depositary
receipts;
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the
distribution of information to the holders of depositary receipts with
respect to matters on which preferred stock is entitled to
vote;
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withdrawals
of the preferred stock by the holders of depositary receipts;
and
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redemption
or conversion of the preferred
stock.
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DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the warrants that we may offer under this prospectus and the
related warrant agreements and warrant certificates. While the terms summarized
below will apply generally to any warrants that we may offer under this
prospectus, we will describe the particular terms of any series of warrants that
we may offer in more detail in the applicable prospectus supplement. If we
indicate in the prospectus supplement, the terms of any warrants offered under
that prospectus supplement may differ from the terms described below. However,
no prospectus supplement shall fundamentally change the terms that are set forth
in this prospectus or offer a security that is not registered and described in
this prospectus at the time of its effectiveness. Specific warrant agreements
will contain additional important terms and provisions and will be incorporated
by reference as an exhibit to the registration statement that includes this
prospectus or as an exhibit to a report filed under the Exchange
Act.
General
We will
describe in the applicable prospectus supplement the terms of the series of
warrants, including:
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the offering price and aggregate number of
warrants offered;
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the
currency for which the warrants may be
purchased;
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if
applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such
security;
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if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
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in
the case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such
exercise;
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the
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreements and the
warrants;
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the
terms of any rights to redeem or call the
warrants;
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any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants;
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the
dates on which the right to exercise the warrants will commence and
expire;
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the
manner in which the warrant agreements and warrants may be
modified;
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federal
income tax consequences of holding or exercising the
warrants;
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the
terms of the securities issuable upon exercise of the warrants;
and
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any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the securities purchasable upon such exercise,
including:
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in
the case of warrants to purchase common stock or preferred stock, the
right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any .
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Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in
the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Unless we otherwise specify in the
applicable prospectus supplement, holders of the warrants may exercise the
warrants at any time up to the specified time on the expiration date that we set
forth in the applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We will set forth on
the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to
deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any
other office indicated in the applicable prospectus supplement, we will issue
and deliver the securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are exercised, then we will
issue a new warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the warrants may
surrender securities as all or part of the exercise price for
warrants.
Governing
Law
The
warrants and warrant agreements will be governed by and construed in accordance
with the laws of the State of New York.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant
agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable warrant
agreement or warrant, including any duty or responsibility to initiate any
proceedings at law or otherwise, or to make any demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or the holder of
any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its
warrants.
DESCRIPTION
OF RIGHTS
The
following description, together with the additional information we may include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the rights that we may offer under this prospectus and the related
rights agreements. While the terms summarized below will apply generally to any
rights that we may offer under this prospectus, we will describe the particular
terms of any series of rights that we may offer in more detail in the applicable
prospectus supplement. If we indicate in the prospectus supplement, the terms of
any rights offered under that prospectus supplement may differ from the terms
described below. However, no prospectus supplement shall fundamentally change
the terms that are set forth in this prospectus or offer a security that is not
registered and described in this prospectus at the time of its effectiveness.
Specific rights agreements will contain additional important terms and
provisions and will be incorporated by reference as an exhibit to the
registration statement that includes this prospectus or as an exhibit to a
report filed under the Exchange Act.
General
We may
issue rights to purchase common stock, preferred stock or other securities.
These rights may be issued independently or together with any other security
offered hereby and may or may not be transferable by the stockholder receiving
the rights in such offering. In connection with any offering of such rights, we
may enter into a standby arrangement with one or more underwriters or other
purchasers pursuant to which the underwriters or other purchasers may be
required to purchase any securities remaining unsubscribed for after such
offering.
Each
series of rights will be issued under a separate rights agreement which we will
enter into with a bank or trust company, as rights agent, all as set forth in
the applicable prospectus supplement. The rights agent will act solely as our
agent in connection with the certificates relating to the rights and will not
assume any obligation or relationship of agency or trust with any holders of
rights certificates or beneficial owners of rights. We will file the rights
agreement and the rights certificates relating to each series of rights with the
SEC, and incorporate them by reference as an exhibit to the registration
statement of which this prospectus is a part on or before the time we issue a
series of rights.
We will
describe in the applicable prospectus supplement the terms of the series of
rights, including:
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the
date of determining the stockholders entitled to the rights
distribution;
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the
number of rights issued or to be issued to each
stockholder;
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the
exercise price payable for each share of common stock, preferred stock or
other securities upon the exercise of the
rights;
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the
number and terms of the shares of common stock, preferred stock or other
securities which may be purchased per each
right;
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the
extent to which the rights are
transferable;
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the
date on which the holder’s ability to exercise the rights shall commence,
and the date on which the rights shall
expire;
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the
extent to which the rights may include an over-subscription privilege with
respect to unsubscribed securities;
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if
applicable, the material terms of any standby underwriting or purchase
arrangement entered into by us in connection with the offering of such
rights; and
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any
other terms of the rights, including the terms, procedures, conditions and
limitations relating to the exchange and exercise of the
rights.
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The
description in the applicable prospectus supplement of any rights that we may
offer will not necessarily be complete and will be qualified in its entirety by
reference to the applicable rights certificate, which will be filed with the
SEC.
Exercise
of Rights
Each
right will entitle the holder of the right to purchase for cash such amount of
shares of common stock, preferred stock or other securities at such exercise
price as shall in each case be set forth in, or be determinable as set forth in,
the prospectus supplement relating to the rights offered thereby. Rights may be
exercised at any time up to the close of business on the expiration date for
such rights set forth in the prospectus supplement. After the close of business
on the expiration date, all unexercised rights will become void.
Rights
may be exercised as set forth in the prospectus supplement relating to the
rights offered thereby. Upon receipt of payment and the rights certificate
properly completed and duly executed at the corporate trust office of the rights
agent or any other office indicated in the prospectus supplement, we will
forward, as soon as practicable, the shares of common stock, preferred stock or
other securities purchasable upon such exercise. We may determine to offer any
unsubscribed offered securities directly to persons other than stockholders, to
or through agents, underwriters or dealers or through a combination of such
methods, including pursuant to standby underwriting arrangements, as set forth
in the applicable prospectus supplement.
Governing
Law
The
rights and rights agreements will be governed by and construed in accordance
with the laws of the State of New York.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the units that we may offer under this prospectus and the related
unit agreements. While the terms summarized below will apply generally to any
units that we may offer under this prospectus, we will describe the particular
terms of any series of units that we may offer in more detail in the applicable
prospectus supplement. If we indicate in the prospectus supplement, the terms of
any units offered under that prospectus supplement may differ from the terms
described below. However, no prospectus supplement shall fundamentally change
the terms that are set forth in this prospectus or offer a security that is not
registered and described in this prospectus at the time of its effectiveness.
Specific unit agreements will contain additional important terms and provisions
and will be incorporated by reference as an exhibit to the registration
statement that includes this prospectus or as an exhibit to a report filed under
the Exchange Act.
General
We may
issue units comprised of one or more shares of common stock, shares of preferred
stock and warrants in any combination. Each unit will be issued so that the
holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of
each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified date.
We will
describe in the applicable prospectus supplement the terms of the series of
units, including:
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the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those
described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the
units.
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The
provisions described in this section, as well as those described under
“Description of Capital Stock” and “Description of Warrants” will apply to each
unit and to any common stock, preferred stock, or warrant included in each unit,
respectively.
Issuance
in Series
We may
issue units in such amounts and in numerous distinct series as we
determine.
Enforceability
of Rights by Holders of Units
Each unit
agent will act solely as our agent under the applicable unit agreement and will
not assume any obligation or relationship of agency or trust with any holder of
any unit. A single bank or trust company may act as unit agent for more than one
series of units. A unit agent will have no duty or responsibility in case of any
default by us under the applicable unit agreement or unit, including any duty or
responsibility to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a unit may, without the consent of the related
unit agent or the holder of any other unit, enforce by appropriate legal action
its rights as holder under any security included in the unit.
Title
The
Company, the unit agents and any of their agents may treat the registered holder
of any unit certificate as an absolute owner of the units evidenced by that
certificate for any purpose and as the person entitled to exercise the rights
attaching to the units so requested, despite any notice to the
contrary.
LEGAL
OWNERSHIP OF SECURITIES
We can
issue securities in registered form or in the form of one or more global
securities. We describe global securities in greater detail below. We refer to
those persons who have securities registered in their own names on the books
that we or any applicable trustee maintain for this purpose as the “holders” of
those securities. These persons are the legal holders of the securities. We
refer to those persons who, indirectly through others, own beneficial interests
in securities that are not registered in their own names, as “indirect holders”
of those securities. As we discuss below, indirect holders are not legal
holders, and investors in securities issued in book-entry form or in street name
will be indirect holders.
Book-Entry
Holders
We may
issue securities in book-entry form only, as we will specify in the applicable
prospectus supplement. This means securities may be represented by one or more
global securities registered in the name of a financial institution that holds
them as depositary on behalf of other financial institutions that participate in
the depositary’s book-entry system. These participating institutions, which are
referred to as participants, in turn, hold beneficial interests in the
securities on behalf of themselves or their customers.
Only the
person in whose name a security is registered is recognized as the holder of
that security. Securities issued in global form will be registered in the name
of the depositary or its nominee. Consequently, for securities issued in global
form, we will recognize only the depositary as the holder of the securities, and
we will make all payments on the securities to the depositary. The depositary
passes along the payments it receives to its participants, which in turn pass
the payments along to their customers who are the beneficial owners. The
depositary and its participants do so under agreements they have made with one
another or with their customers; they are not obligated to do so under the terms
of the securities.
As a
result, investors in a book-entry security will not own securities directly.
Instead, they will own beneficial interests in a global security, through a
bank, broker or other financial institution that participates in the
depositary’s book-entry system or holds an interest through a participant. As
long as the securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
Street
Name Holders
We may
terminate a global security or issue securities in non-global form. In these
cases, investors may choose to hold their securities in their own names or in
“street name.” Securities held by an investor in street name would be registered
in the name of a bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in those
securities through an account he or she maintains at that
institution.
For
securities held in street name, we will recognize only the intermediary banks,
brokers and other financial institutions in whose names the securities are
registered as the holders of those securities, and we will make all payments on
those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee and of any
third parties employed by us or a trustee, run only to the legal holders of the
securities. We do not have obligations to investors who hold beneficial
interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a
security or has no choice because we are issuing the securities only in global
form.
Special
Considerations for Indirect Holders
If you
hold securities through a bank, broker or other financial institution, either in
book-entry form or in street name, you should check with your own institution to
find out:
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how
it handles securities payments and
notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders’ consent, if ever
required;
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whether
and how you can instruct it to send you securities registered in your own
name so you can be a holder, if that is permitted in the
future;
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how
it would exercise rights under the securities if there were a default or
other event triggering the need for holders to act to protect their
interests; and
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if
the securities are in book-entry form, how the depositary’s rules and
procedures will affect these
matters.
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Global
Securities
A global
security is a security that represents one or any other number of individual
securities held by a depositary. Generally, all securities represented by the
same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that
we deposit with and register in the name of a financial institution or its
nominee that we select. The financial institution that we select for this
purpose is called the depositary. Unless we specify otherwise in the applicable
prospectus supplement, The Depository Trust Company, New York, New York, known
as DTC, will be the depositary for all securities issued in book-entry
form.
A global
security may not be transferred to or registered in the name of anyone other
than the depositary, its nominee or a successor depositary, unless special
termination situations arise. We describe those situations below under “Special
Situations When a Global Security Will Be Terminated.” As a result of these
arrangements, the depositary, or its nominee, will be the sole registered owner
and holder of all securities represented by a global security, and investors
will be permitted to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a broker, bank or
other financial institution that in turn has an account with the depositary or
with another institution that does. Thus, an investor whose security is
represented by a global security will not be a holder of the security, but only
an indirect holder of a beneficial interest in the global security.
If the
prospectus supplement for a particular security indicates that the security will
be issued in global form only, then the security will be represented by a global
security at all times unless and until the global security is terminated. If
termination occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held through any
book-entry clearing system.
Special
Considerations for Global Securities
As an
indirect holder, an investor’s rights relating to a global security will be
governed by the account rules of the investor’s financial institution and of the
depositary, as well as general laws relating to securities transfers. We do not
recognize an indirect holder as a holder of securities and instead deal only
with the depositary that holds the global security.
If
securities are issued only in the form of a global security, an investor should
be aware of the following:
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An
investor cannot cause the securities to be registered in his or her name,
and cannot obtain non-global certificates for his or her interest in the
securities, except in the special situations we describe
below;
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An
investor will be an indirect holder and must look to his or her own bank
or broker for payments on the securities and protection of his or her
legal rights relating to the securities, as we describe
above;
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An
investor may not be able to sell interests in the securities to some
insurance companies and to other institutions that are required by law to
own their securities in non-book-entry
form;
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An
investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be
effective;
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The
depositary’s policies, which may change from time to time, will govern
payments, transfers, exchanges and other matters relating to an investor’s
interest in a global security. We and any applicable trustee have no
responsibility for any aspect of the depositary’s actions or for its
records of ownership interests in a global security. We and the trustee
also do not supervise the depositary in any
way;
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The
depositary may, and we understand that DTC will, require that those who
purchase and sell interests in a global security within its book-entry
system use immediately available funds, and your broker or bank may
require you to do so as well; and
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Financial
institutions that participate in the depositary’s book-entry system, and
through which an investor holds its interest in a global security, may
also have their own policies affecting payments, notices and other matters
relating to the securities. There may be more than one financial
intermediary in the chain of ownership for an investor. We do not monitor
and are not responsible for the actions of any of those
intermediaries.
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Special
Situations When a Global Security Will Be Terminated
In a few
special situations described below, the global security will terminate and
interests in it will be exchanged for physical certificates representing those
interests. After that exchange, the choice of whether to hold securities
directly or in street name will be up to the investor. Investors must consult
their own banks or brokers to find out how to have their interests in securities
transferred to their own name, so that they will be direct holders. We have
described the rights of holders and street name investors above.
The
global security will terminate when the following special situations
occur:
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if
the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we do not
appoint another institution to act as depositary within 90
days;
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if
we notify any applicable trustee that we wish to terminate that global
security; or
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if
an event of default has occurred with regard to securities represented by
that global security and has not been cured or
waived.
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The
prospectus supplement may also list additional situations for terminating a
global security that would apply only to the particular series of securities
covered by the prospectus supplement. When a global security terminates, the
depositary, and not we or any applicable trustee, is responsible for deciding
the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
We may sell the securities covered by
this prospectus from time to time. Registration of the securities covered by
this prospectus does not mean, however, that those securities will necessarily
be offered or sold.
We
may sell the securities separately or together:
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through
one or more underwriters or dealers in a public offering and sale by
them;
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directly
to investors; or
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We
may sell the securities from time to time:
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in
one or more transactions at a fixed price or prices, which may be changed
from time to time;
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at
market prices prevailing at the times of
sale;
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at
prices related to such prevailing market prices;
or
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We
will describe the method of distribution of the securities and the terms of the
offering in the prospectus supplement.
If
underwriters are used in the sale of any securities, the securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions described above. The securities may be
either offered to the public through underwriting syndicates represented by
managing underwriters, or directly by underwriters. Generally, the underwriters'
obligations to purchase the securities will be subject to conditions precedent
and the underwriters will be obligated to purchase all of the securities if they
purchase any of the securities.
We
may authorize underwriters, dealers or agents to solicit offers by certain
purchasers to purchase the securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. The
contracts will be subject only to those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth any commissions we pay
for solicitation of these contracts.
We
may enter into derivative transactions with third parties, or sell securities
not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection
with those derivatives, the third parties may sell securities covered by this
prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of stock. The
third party in such sale transactions will be an underwriter and will be
identified in the applicable prospectus supplement or in a post-effective
amendment.
Underwriters,
dealers and agents may be entitled to indemnification by us against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments made by the underwriters, dealers or
agents, under agreements between us and the underwriters, dealers and
agents.
We
may grant underwriters who participate in the distribution of securities an
option to purchase additional securities in connection with the
distribution.
Underwriters,
dealers or agents may receive compensation in the form of discounts, concessions
or commissions from us or our purchasers, as their agents in connection with the
sale of securities. These underwriters, dealers or agents may be considered to
be underwriters under the Securities Act. As a result, discounts, commissions or
profits on resale received by the underwriters, dealers or agents may be treated
as underwriting discounts and commissions. The prospectus supplement will
identify any such underwriter, dealer or agent and describe any compensation
received by them from us. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
Shares
of our common stock are quoted on the NYSE Amex LLC. Unless otherwise specified
in the related prospectus supplement, all securities we offer, other than common
stock, will be new issues of securities with no established trading market. Any
underwriter may make a market in these securities, but will not be obligated to
do so and may discontinue any market making at any time without notice. We may
apply to list any series of preferred stock or warrants on an exchange, but we
are not obligated to do so. Therefore, there may not be liquidity or a trading
market for any series of securities.
Any
underwriter may engage in overallotment transactions, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Overallotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are purchased in
a covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time. We make no
representation or prediction as to the direction or magnitude of any effect that
such transactions may have on the price of the securities.
Underwriters,
dealers or agents who may become involved in the sale of our securities may
engage in transactions with and perform other services for us in the ordinary
course of their business for which they receive compensation.
LEGAL
MATTERS
The
validity of the securities offered in this pros
pectus will be passed upon for us by McLaughlin &
Stern, LLP, New York and Gordon Law Group, Nevada .
EXPERTS
The
financial statements of China Marine for each of the years in the three-year
period ended December 31, 2008, have been incorporated by reference herein and
in the registration statement. Our financial statements for the year
ended December 31, 2008 are incorporated by reference in reliance on the reports
of ZYCPA Company Limited (formerly Zhong Yi (Hong Kong) C.P.A. Company Limited),
independent registered public accounting firm, and upon the authority of said
firm as experts in accounting and auditing. Our financial statements
for the year ended December 31, 2007 are incorporated by reference in reliance
on the reports of Cordovano and Honeck, LLP, independent registered public
accounting firm, and upon the authority of said firm as experts in accounting
and auditing.
CHINA
MARINE FOOD GROUP LIMITED
ITEM
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION.
The
following table sets forth the costs and expenses, other than underwriting
discounts and commissions, payable by us in connection with the sale of common
stock being registered. All amounts, other than the SEC registration fee, are
estimates. We will pay all these expenses.
Expense
|
|
Amount to be
Paid
|
|
SEC
Registration Fee
|
|
$
|
2,232
|
|
Printing
Fees/Expenses
|
|
$
|
5,000
|
|
Legal
Fees and Expenses
|
|
$
|
30,000
|
|
Accounting
Fees and Expenses
|
|
$
|
5,000
|
|
Blue
Sky Fees & Expenses
|
|
$
|
2,000
|
|
Transfer
Agent and Registrar Fees
|
|
$
|
5,000
|
|
Miscellaneous
1
|
|
$
|
75,000
|
|
TOTAL
|
|
$
|
$124,232
|
|
1
Miscellaneous expenses included road show expenses and listing fees with the
NYSE/AMEX.
ITEM
15. INDEMNIFICATION OF DIRECTORS AND
OFFICERS.
Our
bylaws provide for the indemnification of our present and prior directors and
officers or any person who may have served at our request as a director or
officer of another corporation in which we own shares of capital stock or of
which we are a creditor, against expenses actually and necessarily incurred by
them in connection with the defense of any actions, suits or proceedings in
which they, or any of them, are made parties, or a party, by reason of being or
having been director(s) or officer(s) of us or of such other corporation, in the
absence of negligence or misconduct in the performance of their duties. This
indemnification policy could result in substantial expenditure by us, which we
may be unable to recoup.
Insofar
as indemnification by us for liabilities arising under the Securities Exchange
Act of 1934 may be permitted to our directors, officers and controlling persons
pursuant to provisions of the Amended Articles of Incorporation and Bylaws, or
otherwise, we have been advised that in the opinion of the SEC, such
indemnification is against public policy and is, therefore, unenforceable. In
the event that a claim for indemnification by such director, officer or
controlling person of us is 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 offered, we will, unless in the opinion of
our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
us is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
At the
present time, there is no pending litigation or proceeding involving a director,
officer, employee or other agent of ours in which indemnification would be
required or permitted. We are not aware of any threatened litigation or
proceeding which may result in a claim for such indemnification.
ITEM
16. EXHIBITS.
Exhibit
Number
|
Exhibit
Description
|
|
|
1.1+
|
Form
of Underwriting Agreement
|
4.1+
|
Form
of Certificate of Designation of Preferred Stock
|
4.2+
|
Form
of Common Stock Warrant Agreement and Warrant
Certificate
|
4.3+
|
Form
of Preferred Stock Warrant Agreement and Warrant
Certificate
|
4.4+
|
Form
of Rights Agreement and Rights Certificate
|
4.5+
|
Form
of Unit Agreement
|
4.6+
|
Form
of Deposit Agreement (including Form of Depositary Share Certificate) with
respect to Depositary Share
|
5.1
|
Opinion
of McLaughlin & Stern, LLP (including the opinion of Gordon Law Group)
|
23.1
|
Consent
of McLaughlin & Stern, LLP
and
Gordon Law Group
(included in Exhibit 5.1)
|
23.2++
|
Consent
of ZYCPA Company Limited (formerly Zhong Yi (Hong Kong) C.P.A. Company
Limited)
|
23.3++
|
Consent
of Cordovano and Honeck, LLP
|
24 ++
|
Powers
of Attorney (included on signature
page)
|
+ To be filed by Amendment
to
this Registration Statement or as an exhibit to a report filed under the
Securities Exchange Act of 1934, as amended, or as otherwise required by
regulation of the Securities and Exchange Commission, and incorporated by
reference herein .
++ Filed with Registration Statement on
Form S-3 on September 14, 2009
ITEM
17. UNDERTAKINGS.
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:
a. To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
b. 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 estimate 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 maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
c. 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), (b) and (c) 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 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 which 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 the 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 a Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, each
undersigned Registrant undertakes that in a primary offering of securities of an
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:
a. Any
preliminary prospectus or prospectus of an undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
b. Any
free writing prospectus relating to the offering prepared by or on behalf o an
undersigned Registrant or used or referred to by an undersigned
Registrant;
c. The
portion of any other free writing prospectus relating to the offering containing
material information about an undersigned Registrant or its securities provided
by or on behalf of an undersigned Registrant; and
d. Any
other communication that is an offer in the offering made by an undersigned
Registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of and
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.
(7) 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 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 by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
(8) 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 up on 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.
SIGNATURES
Pursuant
to the requirements of the 1933 Act, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the city of Shishi,
Fujian, China, on the 10th day of December , 2009.
CHINA
MARINE FOOD GROUP LIMITED
|
|
|
By:
|
/s/Pengfei Liu
|
|
Pengfei Liu
|
|
Chief
Executive Officer and Secretary
(Principal
Executive Officer)
|
|
|
By:
|
/s/Marco Hon Wai Ku
|
|
Marco
Hon Wai Ku
|
|
Chief
Financial Officer
(Principal
Financial Officer and Principal
Accounting
Officer)
|
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/Pengfei
Liu
|
|
Chief
Executive Officer, Secretary &
Director
(Principal Executive Officer)
|
|
December
10,
2009
|
Pengfei
Liu
|
|
|
|
|
|
|
|
|
|
/s/Marco
Hon Wai Ku
|
|
Chief
Financial Officer (Principal
Financial
Officer and Principal Accounting
Officer)
|
|
December
10,
2009
|
Marco
Hon Wai Ku
|
|
|
|
|
|
|
|
|
|
/s/Weipeng
Liu
|
|
Director
|
|
December
10,
2009
|
Weipeng
Liu
|
|
|
|
|
|
|
|
|
|
/s/Xiaochuan
Li
|
|
Director
|
|
December
10,
2009
|
Xiaochuan
Li
|
|
|
|
|
|
|
|
|
|
/s/Changhu
Xue
|
|
Director
|
|
December
10,
2009
|
Changhu
Xue
|
|
|
|
|
|
|
|
|
|
/s/Honkau
Wan
|
|
Director
|
|
December
10,
2009
|
Honkau
Wan
|
|
|
|
|
EXHIBIT
INDEX
Exhibit
Number
|
Exhibit
Description
|
|
|
1.1+
|
Form
of Underwriting Agreement
|
4.1+
|
Form
of Certificate of Designation of Preferred Stock
|
4.2+
|
Form
of Common Stock Warrant Agreement and Warrant
Certificate
|
4.3+
|
Form
of Preferred Stock Warrant Agreement and Warrant
Certificate
|
4.4+
|
Form
of Rights Agreement and Rights Certificate
|
4.5+
|
Form
of Unit Agreement
|
4.6+
|
Form
of Deposit Agreement (including Form of Depositary Share Certificate) with
respect to Depositary Share
|
5.1
|
Opinion of
McLaughlin & Stern, LLP
(including
the opinion of Gordon Law Group)
|
23.1
|
Consent
of McLaughlin & Stern, LLP
and
Gordon Law Group
(included in Exhibit 5.1)
|
23.2++
|
Consent
of ZYCPA Company Limited (formerly Zhong Yi (Hong Kong) C.P.A. Company
Limited)
|
23.3++
|
Consent
of Cordovano and Honeck, LLP
|
24 ++
|
Powers
of Attorney (included on signature
page)
|
+ To be filed by Amendment to this
Registration Statement or as an exhibit to a report filed under the Securities
Exchange Act of 1934, as amended, or as otherwise required by regulation of the
Securities and Exchange Commission, and incorporated by reference herein
.
++ Filed with Registration Statement on
Form S-3 on September 14, 2009
China Marine Food (CE) (USOTC:CMFO)
Gráfica de Acción Histórica
De Ago 2024 a Sep 2024
China Marine Food (CE) (USOTC:CMFO)
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De Sep 2023 a Sep 2024