As filed
with the Securities and Exchange Commission on June 18 , 2010
Registration
No. 333 –167246
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
YUHE
INTERNATIONAL, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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87-0569467
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(State
or other jurisdiction
of
incorporation or organization)
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(I.R.S.
Employer
Identification
No.)
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301
Hailong Street
Hanting
District, Weifang, Shandong Province
The
People’s Republic of China
Telephone
Number: (86) 536 736 3688
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
CSC
Services of Nevada, Inc.
502
East John Street
Carson
City, NV 89706
Telephone
number: 800-927-9800
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
With
copies to:
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Simon
Luk, Esq.
Winston
& Strawn LLP
200
Park Avenue
New
York, New York 10166-4193
852-2292-2000
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David
A. Sakowitz, Esq.
Winston
& Strawn LLP
200
Park Avenue
New
York, New York 10166-4193
(212)
294-6700
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Approximate date of commencement of
proposed sale to the public:
From time to time after the effective date
of this registration statement.
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, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
þ
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.
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.
¨
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, 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
¨
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Accelerated
filer
¨
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Non-accelerated
filer (Do not check if a smaller reporting company)
¨
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Smaller
reporting company
þ
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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 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Explanatory
Note
This
Amendment is being filed solely for the purpose of filing a revised Exhibit
5.1. Accordingly, this Amendment consists only of the facing page, this
explanatory note and Part II of the Registration Statement. The
Prospectus is unchanged and has been omitted.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
The
following table sets forth the costs and expenses payable by the Registrant in
connection with the sale and distribution of the common stock registered hereby,
other than underwriting commissions and discounts, all of which are estimated
except for the SEC registration fee.
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Item
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Amount
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SEC
registration fee
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$
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2,852
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Printing
and engraving expenses
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10,000
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Legal
fees and expenses
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50,000
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Accounting
fees and expenses
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10,000
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Miscellaneous
expenses
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10,000
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Total
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$
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82,852
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ITEM 15. INDEMNIFICATION
OF DIRECTORS AND OFFICERS
We are a
Nevada corporation and certain provisions of the Nevada Revised Statutes provide
for indemnification of directors, officers, employees or agents against
liabilities which they may incur in such capacities. Nevada law
generally permits us to indemnify our directors, officers, employees and
agents. The Nevada Revised Statutes permit a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys’ fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if such person (i) is not liable for a breach of
fiduciary duties involving intentional misconduct, fraud or a knowing violation
of law, or (ii) acted in good faith and in a manner he 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 his
conduct was unlawful. No indemnification, however, shall be made in
respect of any claim, issue or matter as to which such person is adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that, despite the adjudication of liability but in view of all of
the circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
Nevada
law requires that a corporation must indemnify a director, officer, employee or
agent of the corporation against expenses, including attorneys’ fees, actually
and reasonably incurred by him in connection with the defense of any action,
suit or proceeding of the type described in the second sentence of the foregoing
paragraph, to the extent such person has been successful on the merits or
otherwise in defense of any such action, suit or proceeding. Any
permissive indemnification permitted under Nevada law may be made only as
authorized in each specific case upon a determination that indemnification is
proper because the indemnitee has met the applicable standard of conduct, with
such determination to be made by either (a) the stockholders, (b) the board of
directors by majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding or (c) independent legal counsel in a
written opinion (if either a majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding so orders or if such a
quorum cannot be obtained).
Nevada
law allows a corporation to purchase and maintain insurance or make other
financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
Our
articles of incorporation provide that none of our directors or officers shall
be personally liable to us or our stockholders for monetary damages for a breach
of fiduciary duty as a director or officer provided, however, that the foregoing
provisions shall not eliminate or limit the liability of a director or officer
for acts or omissions which involve intentional misconduct, fraud or knowing
violation of law, or the payment of dividends in violation of Section 78.300 of
the Nevada Revised Statutes. Limitations on liability provided for in our
articles of incorporation do not restrict the availability of non-monetary
remedies and do not affect a director’s responsibility under any other law, such
as the federal securities laws or state or federal environmental
laws.
We
believe that these provisions will assist us in attracting and retaining
qualified individuals to serve as executive officers and directors. The
inclusion of these provisions in our articles of incorporation may have the
effect of reducing a likelihood of derivative litigation against our directors
and may discourage or deter stockholders or management from bringing a lawsuit
against directors for breach of their duty of care, even though such an action,
if successful, might otherwise have benefited us or our
stockholders.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons pursuant to the
foregoing provisions, or otherwise, we have 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 us, of
expenses incurred or paid by a director, officer or controlling person of us, 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, 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 it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
ITEM 16. EXHIBITS
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Number
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Exhibit
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1.1
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Form
of Underwriting Agreement*
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3.1
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Articles
of incorporation of the registrant as filed with the Secretary of State of
Nevada, as amended to date [Incorporated by reference to Exhibit 3.1 to
the registrant’s current report on Form 8-K filed on April 10,
2008]
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3.2
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Bylaws
adopted as of June 1, 2010**
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4.1
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Registration
Rights Agreement dated March 12, 2008 by and among First Growth Investors,
Inc. and certain investors [Incorporated by reference to Exhibit 10.4 to
the registrant’s current report on Form 8-K filed on March 17,
2008]
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5.1
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Opinion
of Holland & Hart LLP** *
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23.1
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Consent
of Child, Van Wagoner & Bradshaw, PLLC, independent
auditors**
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23.3
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Consent
of Holland & Hart LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on the signature page of original
filing )
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*
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To
be filed by amendment or as an exhibit to a Current Report on Form 8-K and
incorporated by reference herein.
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**
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Filed
previously.
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***
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Filed
herewith.
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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:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% 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
, Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section 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 Exchange Act 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, 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 to any
purchaser:
(i) 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
(ii) 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 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 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, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in 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 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 that:
(1) For
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective.
(2) For
the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities 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 Amendment No. 1 to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Weifang, the People’s Republic of China, on June
18 , 2010.
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YUHE INTERNATIONAL,
INC.
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By:
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/s/ Gao
Zhentao
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Gao
Zhentao
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Chief
Executive Officer
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Pursuant
to the requirements of the Securities Act, this Amendment No. 1 to the
registration statement has been signed by the following persons in the
capacities indicated on June 18 , 2010.
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/s/
Gao Zhentao
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Gao
Zhentao
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Chief Executive Officer
and Chairman of the Board of Directors
(Principal Executive Officer)
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/s/
Hu Gang
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Hu
Gang
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Chief
Financial Officer
(Principal
Financial Officer)
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*
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Jiang
Yingjun (also known as Jiang Yiqiang)
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Chief
Accounting Officer
(Principal
Accounting Officer)
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*
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Peter
Li
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Director
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*
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Liu
Yaojun
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Director
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*
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Greg
Huett
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Director
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*
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Han
Chengxiang
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Director
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Gao Zhentao
As Attorney-in-fact
EXHIBIT
INDEX
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Exhibit
No.
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|
Exhibit
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1.1
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|
Form
of Underwriting Agreement*
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3.1
|
|
Articles
of incorporation of the registrant as filed with the Secretary of State of
Nevada, as amended to date [Incorporated by reference to Exhibit 3.1 to
the registrant’s current report on Form 8-K filed on April 10,
2008]
|
|
3.2
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|
Bylaws
adopted as of June 1, 2010**
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4.1
|
|
Registration
Rights Agreement dated March 12, 2008 by and among First Growth Investors,
Inc. and certain investors [Incorporated by reference to Exhibit 10.4 to
the registrant’s current report on Form 8-K filed on March 17,
2008]
|
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5.1
|
|
Opinion
of Holland & Hart LLP** *
|
|
23.1
|
|
Consent
of Child, Van Wagoner & Bradshaw, PLLC, independent
auditors**
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23.3
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Consent
of Holland & Hart LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on the signature page of original
filing )
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|
*
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To
be filed by amendment or as an exhibit to a Current Report on Form 8-K and
incorporated by reference herein.
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**
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Filed
previously.
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***
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Filed
herewith.
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Yuhe (CE) (USOTC:YUII)
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