As filed with the Securities and
Exchange Commission on January 12, 2010
Registration No. 333- 164041
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
Amendment
No. 2
to
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SORL
Auto Parts, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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30-0091294
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(State
or other jurisdiction
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(I.R.S.
Employer
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of
incorporation or organization)
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Identification
Number)
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No.
1169 Yumeng Road
Ruian
Economic Development District
Ruian
City, Zhejiang Province
People’s
Republic of China
86-577-65817720
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
Xiaoping
Zhang
Chief
Executive Officer
No.
1169 Yumeng Road
Ruian
Economic Development District
Ruian
City, Zhejiang Province
People’s
Republic of China
86-577-65817720
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
To:
Zili
Chen
SORL
Auto Parts, Inc.
No.
1169 Yumeng Road
Ruian
Economic Development District
Ruian
City, Zhejiang Province
People’s
Republic of China
86-577-65817720
Jeffrey
L. Schulte, Esq.
Morris,
Manning & Martin, LLP
1600
Atlanta Financial Center
3343
Peachtree Road, N.E.
Atlanta,
Georgia 30326
Telephone:
(404) 504-7655
Facsimile:
(404) 365-9532
Approximate date of commencement of
proposed sale to the public:
As soon as practicable 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:
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 securities offered only in connection with dividend or
interest reinvestment plans, please 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 in 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 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.
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. (Check one):
Large
accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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(Do
not check if a smaller reporting
company)
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Smaller
reporting
company
þ
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CALCULATION
OF REGISTRATION FEE
Title
of each class of
securities
to be registered
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Amount
to be
Registered
(1)(2)(3)
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Proposed
Maximum
Offering
Price
Per
Unit
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Proposed
Maximum
Aggregate
Offering
Price
(1)(2)(3)
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Amount
of
Registration
Fee
(4)
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Common
Stock, par value $0.002 per share
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Preferred
Stock, no par value per share
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Debt
Securities
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Warrants
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Units
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Total(
5
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$
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80,000,000
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$
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5,704
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(6)
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(1)
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There are being registered
hereunder such indeterminate number of shares of common stock and
preferred stock, such indeterminate principal amount of debt securities,
such indeterminate number of warrants to purchase common stock, preferred
stock and/or debt securities, and such indeterminate number of units as
may be sold by the registrant from time to time, which together shall have
an aggregate initial offering price not to exceed $80,000,000 or its
equivalent in any other currency, currency units, or composite currency or
currencies. If any debt securities are issued at an original issue
discount, then the offering price of such debt securities shall be in such
greater principal amount at maturity as shall result in an aggregate
offering price not to exceed $80,000,000, less the aggregate dollar amount
of all securities previously issued hereunder. Any securities registered
hereunder may be sold separately or as units with the other securities
registered hereunder. The proposed maximum offering price per unit will be
determined, from time to time, by the registrant in connection with the
issuance by the registrant of the securities registered
hereunder.
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(2)
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Not specified with respect to
each class of securities to be registered pursuant to General Instruction
II.D. of Form S-3 under the Securities
Act.
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(3)
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Subject to footnote (1), there
are also being registered hereunder an indeterminate principal amount or
number of shares of debt securities, preferred stock or common stock that
may be issued upon conversion of, or in exchange for, debt securities or
preferred stock registered hereunder or upon exercise of warrants
registered hereunder, as the case may
be.
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(4)
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Calculated pursuant to
Rule 457(o) under the Securities Act, which permits the registration
fee to be calculated on the basis of the maximum aggregate offering price
of all securities listed.
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(5)
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At
no time will the maximum aggregate offering price of all securities issued
in any 12-month period exceed the amount allowed for in General
Instruction I.B.6. of Form S-3.
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(6)
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Previously
paid.
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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.
PROSPECTUS
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 is not soliciting offers to buy these securities in any
state where the offer or sale is not permitted.
Subject to Completion, dated
January 12, 2010
SORL
Auto Parts, Inc.
$80,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We may
offer, issue and sell from time to time our common stock, preferred stock, debt
securities, warrants or units up to $80,000,000 or its equivalent in any other
currency, currency units, or composite currency or currencies in one or more
issuances. We may offer and sell the securities separately, together or as
units, in separate classes or series, in amounts, at prices and on terms to be
determined at the time of sale. This prospectus provides a general description
of offerings of these securities that we may undertake.
Each time
we sell our securities pursuant to this prospectus, we will provide the specific
terms of such offering in a supplement to this prospectus. The prospectus
supplement may also add, update, or change information contained in this
prospectus. You should read this prospectus and the accompanying prospectus
supplement, together with additional information described under the heading
“Where You Can Find More Information” and “Information Incorporated by
Reference,” before you make your investment decision.
This
prospectus may not be used to offer or sell our securities unless accompanied by
a prospectus supplement. The information contained or incorporated in this
prospectus or in any prospectus supplement is accurate only as of the date of
this prospectus, or such prospectus supplement, as applicable, regardless of the
time of delivery of this prospectus or any sale of our securities.
Our
common stock is listed on the NASDAQ Global Market under the symbol “SORL”. On
January 8, 2010, the last reported per share sale price of our common stock was
$10.31.
Our common stock is listed on the NASDAQ Global Market under the
symbol “SORL.” On January 8, 2010, the closing sale price of our common stock
was $10.31 per share. As of January 8, 2010, the aggregate market value of our
outstanding common stock held by non-affiliates was approximately $71,608,291,
based on 18,304,921 shares of outstanding common stock, of
which 6,945,518 shares were held by non-affiliates, and a per share price
of $10.31 based on the closing sale price of our common stock on that date. We
have not offered any securities during the period of 12 calendar months
immediately prior to, and including, the date of this prospectus pursuant to
General Instruction I.B.6. of Form S-3.
We may
offer securities through underwriting syndicates managed or co-managed by one or
more underwriters, through agents, or directly to purchasers. The
prospectus supplement for each offering of securities will describe the plan of
distribution for that offering. For general information about the
distribution of securities offered, please see “Plan of Distribution” in this
prospectus.
See
the “Risk Factors” section of our filings with the SEC and the applicable
prospectus supplement for certain risks that you should consider before
investing in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus or
any prospectus supplement is truthful or complete. Any representation to the
contrary is a criminal offense.
The date
of this prospectus is
,
2009.
ABOUT
THIS PROSPECTUS
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USE
OF TERMS
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SORL
AUTO PARTS, INC.
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1
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RISK
FACTORS
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CORPORATE
INFORMATION
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FORWARD-LOOKING
STATEMENTS
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USE
OF PROCEEDS
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RATIOS
OF EARNINGS TO FIXED CHARGES
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DESCRIPTION
OF CAPITAL STOCK
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3
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DESCRIPTION
OF WARRANTS
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7
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DESCRIPTION
OF DEBT SECURITIES
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8
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DESCRIPTION
OF UNITS
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PLAN
OF DISTRIBUTION
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LEGAL
MATTERS
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EXPERTS
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WHERE
YOU CAN FIND ADDITIONAL INFORMATION
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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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 SEC, using a “shelf”
registration process. Under this shelf registration process, we may sell our
securities described in this prospectus in one or more offerings up to a total
dollar amount of $80,000,000. Each time we offer our securities, we will provide
you with a supplement to this prospectus that will describe the specific
amounts, prices and terms of the securities we offer. The prospectus supplement
may also add, update or change information contained in this prospectus. This
prospectus, together with applicable prospectus supplements and the documents
incorporated by reference in this prospectus and any prospectus supplements,
includes all material information relating to this offering. Please read
carefully both this prospectus and any prospectus supplement together with
additional information described below under “Where You Can Find More
Information” and “Information Incorporated by Reference.”
You
should rely only on the information contained in or incorporated by reference in
this prospectus and any applicable prospectus supplement. We have not authorized
anyone to provide you with different or additional information. If anyone
provides you with different or inconsistent information, you should not rely on
it. The information contained in this prospectus is accurate only as of the date
of this prospectus, regardless of the time of delivery of this prospectus or any
sale of securities described in this prospectus. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus or any
prospectus supplement, as well as information we have previously filed with the
SEC and incorporated by reference, is accurate as of the date on the front of
those documents only. Our business, financial condition, results of operations
and prospects may have changed since those dates.
This prospectus may not be used to
consummate a sale of our securities unless it is accompanied by a prospectus
supplement
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USE
OF TERMS
Except as
otherwise indicated by the context, all references in this prospectus to (i)
“SORL,” “we,” “us,” “our,” “our Company,” or “the Company” are to SORL Auto
Parts, Inc., a Delaware corporation, and its consolidated subsidiaries; (ii)
“Securities Act” are to the Securities Act of 1933, as amended; (iii) “Exchange
Act” means the Securities Exchange Act of 1934, as amended; and (iv) “China” and
“PRC” are to the People’s Republic of China.
SORL AUTO PARTS,
INC
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We
develop, manufacture and distribute automotive air brake systems to automotive
original equipment manufacturers, or OEMs, and the related aftermarket both in
China and internationally. Installed on the chassis, air brake systems include a
collection of various air brake components using compressed air and functioning
as the execution device for service braking and parking braking. The Company’s
products are principally used in commercial vehicles weighing over three tons,
such as trucks and buses. Air brake systems are critical components that ensure
driving safety.
We are
located in Ruian City, Zhejiang Province, PRC. Our main products
include spring brake chambers, clutch servos, air dryers, and main valves and
manual valves, all of which are widely used in the brake systems for various
types of commercial vehicles. Reliable functioning of those valves is
critical to safety both when driving and parking.
Our
principal Chinese OEM customers include FAW Group Corporation, Dongfeng Axle
Co., Ltd. and Beiqi Foton Motor Company. In the aftermarket, we have a
sales network of 28 authorized distributors covering seven regions in
China. We are seeking to export more of our products to the international
market and presently provide products to customers in the United Arab Emirates,
Australia and the United States. Recently, we began selling products in
India and, in the fourth quarter of 2009, we established a joint venture in Hong
Kong for the purpose of enhancing our international marketing
efforts.
RISK FACTORS
An
investment in our securities involves a high degree of risk. Prior to making a
decision about investing in our securities, you should carefully consider the
specific risk factors discussed in the sections entitled “Risk Factors”
contained in our Annual Report on Form 10-K for the fiscal year ended December
31, 2008, and in any applicable prospectus supplement and our other filings with
the SEC and incorporated by reference in this prospectus, together with all of
the other information contained in this prospectus, or any applicable prospectus
supplement. Additional risks and uncertainties not presently known to us,
or that we currently view as immaterial, may also impair our business. If any of
the risks or uncertainties described in our SEC filings or any prospectus
supplement or any additional risks and uncertainties actually occur, our
business, financial condition and results of operations could be materially and
adversely affected. In that case, the trading price of our securities could
decline and you might lose all or part of your investment.
Our principal executive offices are located at No. 1169 Yumeng
Road, Ruian Economic Development District, Ruian City, Zhejiang Province,
People’s Republic of China, and our telephone number is 86-577-65817720. Our web
site address is
www.sorl.com.cn
. Information
on our web site is not part of this prospectus.
This
prospectus contains or incorporates forward-looking statements within the
meaning of section 27A of the Securities Act and section 21E of the Exchange
Act. These forward-looking statements are management’s beliefs and assumptions.
In addition, other written or oral statements that constitute forward-looking
statements are based on current expectations, estimates and projections about
the industry and markets in which we operate and statements may be made by or on
our behalf. Words such as “should,” “could,” “may,” “expect,” “anticipate,”
“intend,” “plan,” “believe,” “seek,” “estimate,” variations of such words and
similar expressions are intended to identify such forward-looking statements.
These statements are not guarantees of future performance and involve certain
risks, uncertainties and assumptions that are difficult to predict. There are a
number of important factors that could cause our actual results to differ
materially from those indicated by such forward-looking statements.
We
describe material risks, uncertainties and assumptions that could affect our
business, including our financial condition and results of operations, under
“Risk Factors” and may update our descriptions of such risks, uncertainties and
assumptions in any prospectus supplement. We base our forward-looking statements
on our management’s beliefs and assumptions based on information available to
our management at the time the statements are made. We caution you that actual
outcomes and results may differ materially from what is expressed, implied or
forecast by our forward-looking statements. Accordingly, you should be careful
about relying on any forward-looking statements. Reference is made in particular
to forward-looking statements regarding growth strategies, financial results,
product development, competitive strengths, intellectual property rights,
litigation, mergers and acquisitions, market acceptance or continued acceptance
of our products, accounting estimates, financing activities, ongoing contractual
obligations and sales efforts. Except as required under the federal securities
laws and the rules and regulations of the SEC, we do not have any intention or
obligation to update publicly any forward-looking statements after the
distribution of this prospectus, whether as a result of new information, future
events, changes in assumptions, or otherwise.
USE OF PROCEEDS
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research and development
expenditures; and
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The
precise amount and timing of the application of such proceeds will depend upon
our funding requirements and the availability and cost of other capital.
Pending any specific application, we may initially invest funds in short-term
marketable securities. Additional information on the use of net proceeds from
the sale of securities covered by this prospectus may be set forth in the
prospectus supplement relating to the specific offering.
RATIOS
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our ratios of consolidated earnings to fixed charges
for the periods indicated:
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Nine-Months Ended
September 30,
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Year Ended December 31,
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2009
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2008
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2007
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2006
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2005
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2004
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Ratio
of earnings to fixed charges:
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773.7
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85.1
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85.6
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13.4
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11.7
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19.7
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DESCRIPTION
OF CAPITAL STOCK
Our Certificate of Incorporation authorizes us to issue 50,000,000
shares of common stock, $.002 par value per share, and 1,000,000 shares of
preferred stock, no par value per share. As of January 8, 2010, there were
18,304,921 shares of common stock, and no shares of preferred stock,
outstanding.
The
following description of our capital stock, and any description of our capital
stock in a prospectus supplement may not be complete and is subject to, and
qualified in its entirety by reference to, Delaware law and the actual terms and
provisions contained in our Certificate of Incorporation and bylaws, each as
amended from time to time.
Common Stock
. All outstanding common stock is, and any stock issued under this
prospectus will be, fully paid and non-assessable. Subject to the rights of the
holders of outstanding preferred stock, if any, holders of common
stock:
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are entitled to any dividends or
other distributions when and if declared by our board of directors out of
funds legally available for such
purpose;
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will share ratably in our net
assets in the event of a dissolution, winding-up or liquidation of our
company; and
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are entitled to one vote per
share of record on all matters to be voted upon by shareholders and to
vote together as a single class for the election of directors and in
respect of other corporate
matters..
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The
common stock has no conversion or redemption rights or features. Holders of
common stock have no preemptive rights to purchase or subscribe for any stock or
other securities of ours, or call rights related to those shares.
Preferred Stock
. Our board of directors is authorized, without action by the
shareholders, to issue preferred stock from time to time with dividend,
liquidation, conversion, voting, and other rights and restrictions as it may
determine. Shares of preferred stock may be issued in one or more classes
or series within a class as may be determined by our board of directors, who may
also establish the number of shares to be included in each class or series. Any
preferred stock so issued by the board of directors may rank senior to the
common stock with respect to the payment of dividends or amounts upon
liquidation, dissolution or winding up of the Company, or both.
Unless
provided in a supplement to this prospectus, the shares of our preferred stock
to be issued will have no preemptive rights. If preferred stock is offered by
us, the prospectus supplement will describe the terms of the preferred stock,
including the following if applicable to the particular offering:
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number of shares of preferred
stock to be issued and the offering price of the preferred
stock;
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the title and stated value of the
preferred stock;
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dividend rights, including
dividend rates, periods, or payment dates, or methods of calculation of
dividends applicable to the preferred
stock;
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the date from which distributions
on the preferred stock shall accumulate, if
applicable;
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right to convert the preferred
stock into a different type of
security;
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voting rights attributable to the
preferred stock;
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rights and preferences upon our
liquidation or winding up of our
affairs;
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the procedures for any auction
and remarketing, if any, for the preferred
stock;
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the provisions for a sinking
fund, if any, for the preferred
stock;
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any listing of the preferred
stock on any securities
exchange;
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the terms and conditions, if
applicable, upon which the preferred stock will be convertible into our
common stock, including the conversion price (or manner of calculation
thereof);
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a discussion of federal income
tax considerations applicable to the preferred
stock;
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the relative ranking and
preferences of the preferred stock as to distribution rights (including
whether any liquidation preference as to the preferred stock will be
treated as a liability for purposes of determining the availability of
assets for distributions to holders of stock ranking junior to the shares
of preferred stock as to distribution
rights);
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any limitations on issuance of
any series of preferred stock ranking senior to or on a parity with the
series of preferred stock being offered as to distribution rights and
rights upon the liquidation, dissolution or winding up or our affairs;
and
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any other specific terms,
preferences, rights, limitations or restrictions of the preferred
stock.
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If our
board of directors decides to issue any preferred stock, it may discourage or
make more difficult a merger, tender offer, business combination or proxy
contest, assumption of control by a holder of a large block of our securities or
the removal of incumbent management, even if these events were favorable to the
interests of shareholders. Our board of directors, without shareholder approval,
may issue preferred stock with voting and conversion rights and dividend and
liquidation preferences which may adversely affect the holders of common
stock.
Anti-Takeover Effects of Provisions
of Delaware Law and Our Certificate of Incorporation and
Bylaws
Our
Certificate of Incorporation and Bylaws contain a number of provisions that
could make our acquisition by means of a tender or exchange offer, a proxy
contest or otherwise more difficult. These provisions are summarized
below.
Antitakeover
Provision in Certificate of Incorporation
. Our Certificate of
Incorporation requires an 80% stockholder vote to approve a merger,
consolidation, or dale or exchange of all or substantially all of our assets or
business to or with a holder of 5% or more of our shares of voting stock, or
with an affiliate of such a holder. The provision does not apply to
transactions with certain stockholders, including a transaction that is approved
by our board of directors prior to the stockholder’s acquisition of 5% of or
more of our voting stock, a transaction with any stockholder that owns 50% or
more of our voting stock, or a transaction with a stockholder who was the
beneficial owner of 5% or more of our outstanding common stock prior to July 1,
1986 as reported to the Securities and Exchange Commission. This could
prevent transactions that otherwise are in the best interests of our company and
our stock holders and reduce the value of our shares.
Special
Meetings
. Our Bylaws do not permit special meetings of stockholders to be
called by stockholders.
Undesignated
Preferred Stock
. The ability to authorize undesignated preferred stock
makes it possible for our Board of Directors to issue preferred stock with
voting or other rights or preferences that could impede the success of any
attempt to acquire us. The ability to issue preferred stock may have the effect
of deferring hostile takeovers or delaying changes in control or management of
our Company.
Delaware
Anti-Takeover Statute
. We are subject to the provisions of
Section 203 of the Delaware General Corporation Law regulating corporate
takeovers. In general, Section 203 prohibits a publicly held Delaware
corporation from engaging under certain circumstances in a business combination
with an interested stockholder for a period of three years following the date
the person became an interested stockholder unless:
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Prior
to the date of the transaction, the board of directors of the corporation
approved either the business combination or the transaction which resulted
in the stockholder becoming an interested
stockholder.
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Upon
completion of the transaction that resulted in the stockholder becoming an
interested stockholder, the stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares
outstanding (1) shares owned by persons who are directors and also
officers and (2) shares owned by employee stock plans in which
employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer.
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On
or subsequent to the date of the transaction, the business combination is
approved by the board and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at
least 66 2/3% of the outstanding voting stock which is not owned by the
interested stockholder.
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Generally,
a business combination includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested stockholder. An
interested stockholder is a person who, together with affiliates and associates,
owns or, within three years prior to the determination of interested stockholder
status, did own 15% or more of a corporation’s outstanding voting securities. We
expect the existence of this provision to have an anti-takeover effect with
respect to transactions our Board of Directors does not approve in advance. We
also anticipate that Section 203 may also discourage attempted acquisitions
that might result in a premium over the market price for the shares of common
stock held by stockholders.
The
provisions of Delaware law, our Certificate of Incorporation and our Bylaws
could have the effect of discouraging others from attempting hostile takeovers
and, as a consequence, they may also inhibit temporary fluctuations in the
market price of our common stock that often result from actual or rumored
hostile takeover attempts. These provisions may also have the effect of
preventing changes in our management. It is possible that these provisions could
make it more difficult to accomplish transactions that stockholders may
otherwise deem to be in their best interests.
Limitation of Director
Liability
The
Delaware General Corporation Law authorizes corporations to limit or eliminate
the personal liability of directors to corporations and their stockholders for
monetary damages for breach of the directors’ fiduciary duty of care. Although
the law does not change the directors’ duty of care, it enables corporations to
limit available relief in most cases to equitable remedies such as an
injunction. Our certificate of incorporation limits the liability of directors
to us or our stockholders to the fullest extent permitted by applicable law.
Specifically, our directors will not be personally liable to us or our
stockholders for monetary damages for breach of a director’s fiduciary duty as a
director, except for liability:
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for
any breach of the director’s duty of loyalty to us or our
stockholders;
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for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law;
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for
unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the DGCL;
or
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for
any transaction from which the director derived an improper personal
benefit.
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Indemnification
To the
maximum extent permitted by law, our bylaws and our Certificate of Incorporation
provide for mandatory indemnification of directors and officers and permit
indemnification of our employees and agents against all expense, liability and
loss to which they may become subject or which they may incur as a result of
being or having been our director, officer, employee or agent. In addition,
subject to the standards and conditions of the Delaware General Corporation Law,
we must advance or reimburse directors and officers, and may advance or
reimburse employees and agents, for expenses incurred by them as a result of
indemnifiable claims.
Transfer Agent and
Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer
and Trust Company, 17 Battery Place, New York, New York
10004.
Listing
Our
common stock is listed on the Nasdaq Global Market.
We may
issue warrants for the purchase of common stock, preferred stock and/or debt
securities in one or more series. We may issue warrants independently or
together with common stock, preferred stock and/or debt securities, and the
warrants may be attached to or traded separate and apart from these securities.
Each series of warrants will be issued under a warrant agreement all as set
forth in the prospectus supplement. A copy of the form of warrant agreement,
including any form of warrant certificates representing the warrants, reflecting
the provisions to be included in the warrant agreements and/or warrant
certificates that will be entered into with respect to particular offerings of
warrants, will be filed as an exhibit to a Form 8-K to be incorporated into the
registration statement of which this prospectus constitutes a part prior to the
issuance of any warrants.
The
applicable prospectus supplement or term sheet will describe the terms of the
warrants offered thereby, any warrant agreement relating to such warrants and
the warrant certificates, including but not limited to the
following:
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the offering price or
prices;
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the aggregate amount of
securities that may be purchased upon exercise of such warrants and
minimum number of warrants that are
exercisable;
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the currency or currency units in
which the offering price, if any, and the exercise price are
payable;
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the number of securities, if any,
with which such warrants are being offered and the number of such warrants
being offered with each
security;
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the date on and after which such
warrants and the related securities, if any, will be transferable
separately;
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the amount of securities
purchasable upon exercise of each warrant and the price at which the
securities may be purchased upon such exercise, and events or conditions
under which the amount of securities may be subject to
adjustment;
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the date on which the right to
exercise such warrants shall commence and the date on which such right
shall expire;
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the circumstances, if any, which
will cause the warrants to be deemed to be automatically
exercised;
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any material risk factors, if
any, relating to such
warrants;
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the identity of any warrant
agent; and
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any other terms of such warrants
(which shall not be inconsistent with the provisions of the warrant
agreement).
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Each
warrant will entitle the holder to purchase a principal amount of common stock,
preferred stock and/or debt securities at an exercise price as shall in each
case be set forth in, or calculable from, the prospectus supplement relating to
those warrants. Warrants may be exercised at the times set forth in the
prospectus supplement relating to such warrants. After the close of business on
the expiration date (or any later date to which the expiration date may be
extended by us), unexercised warrants will become void. Subject to any
restrictions and additional requirements that may be set forth in the prospectus
supplement relating thereto, warrants may be exercised by delivery to the
Company or its warrant agent of the certificate evidencing the warrants properly
completed and duly executed and of payment as provided in the prospectus
supplement of the amount required to purchase the debt securities or shares of
common stock, shares of preferred stock, or depositary shares purchasable upon
such exercise. The exercise price will be the price applicable on the date of
payment in full, as set forth in the prospectus supplement relating to the
warrants. Upon receipt of the payment and the certificate representing the
warrants to be exercised properly completed, duly executed and properly
delivered as indicated in the prospectus supplement, we will, as soon as
practicable, issue and deliver the debt securities or shares of common stock,
shares of preferred stock, or depositary shares purchasable upon such exercise.
If fewer than all of the warrants represented by that certificate are exercised,
a new certificate will be issued for the remaining amount of
warrants.
Prior to
the exercise of any warrants, holders of such warrants will not have any rights
of holders of the securities purchasable upon such exercise, including the right
to receive payments of dividends, if any, on the securities purchasable upon
such exercise, statutory appraisal rights or the right to vote such underlying
securities.
Prospective
purchasers of warrants should be aware that material U.S. federal income tax,
accounting and other considerations may be applicable to instruments such as
warrants.
DESCRIPTION OF DEBT
SECURITIES
The
following is a summary of the general terms of the debt securities that we may
issue. We will file a prospectus supplement that may contain additional
terms when we issue debt securities. The terms presented here, together with the
terms in a related prospectus supplement, will be a description of the material
terms of the debt securities. You should also read the indenture under which the
debt securities are to be issued. We have filed a form of indenture governing
different types of debt securities with the SEC as an exhibit to the
registration statement of which this prospectus is a part. All capitalized terms
have the meanings specified in the indenture.
We may
issue, from time to time, debt securities, in one or more series, that will
consist of senior debt, senior subordinated debt or subordinated debt. We refer
to the subordinated debt securities and the senior subordinated debt securities
together as the subordinated securities. The debt securities that we may offer
will be issued under an indenture between us and an entity, identified in the
applicable prospectus supplement, as trustee. Debt securities, whether senior,
senior subordinated or subordinated, may be issued as convertible debt
securities or exchangeable debt securities. The following is a summary of the
material provisions of the indenture filed as an exhibit to the registration
statement of which this prospectus is a part.
As
you read this section, please remember that for each series of debt securities,
the specific terms of your debt security as described in the applicable
prospectus supplement will supplement and, if applicable, may modify or replace
the general terms described in the summary below. The statement we make in
this section may not apply to your debt security.
General
Terms of the Indenture
The
indenture does not limit the amount of debt securities that we may issue. It
provides that we may issue debt securities up to the principal amount that we
may authorize and may be in any currency or currency unit that we may designate.
We may, without the consent of the holders of any series, increase the principal
amount of securities in that series in the future, on the same terms and
conditions and with the same CUSIP numbers as that series. Except for the
limitations on consolidation, merger and sale of all or substantially all of our
assets contained in the indenture, the terms of the indenture do not
contain any covenants or other provisions designed to give holders of any debt
securities protection against changes in our operations, financial condition or
transactions involving us.
We may
issue the debt securities issued under the indenture as “discount securities,”
which means they may be sold at a discount below their stated principal amount.
These debt securities, as well as other debt securities that are not issued at a
discount, may be issued with “original issue discount”, or OID, for U.S. federal
income tax purposes because of interest payment and other characteristics.
Material U.S. federal income tax considerations applicable to debt securities
issued with original issue discount will be described in more detail in any
applicable prospectus supplement.
The
applicable prospectus supplement for a series of debt securities that we issue
will describe, among other things, the following terms of the offered debt
securities:
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the title and authorized
denominations of the series of debt
securities;
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any limit on the aggregate
principal amount of the series of debt
securities;
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whether such debt securities will
be issued in fully registered form without coupons or in a form registered
as to principal only with coupons or in bearer form with
coupons;
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whether issued in the form of one
or more global securities and whether all or a portion of the principal
amount of the debt securities is represented
thereby;
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the price or prices at which the
debt securities will be
issued;
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the date or dates on which
principal is payable;
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the place or places where and the
manner in which principal, premium or interest, if any, will be payable
and the place or places where the debt securities may be presented for
transfer and, if applicable, conversion or
exchange;
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interest rates, and the dates
from which interest, if any, will accrue, and the dates when interest is
payable and the maturity;
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the right, if any, to extend the
interest payment periods and the duration of the
extensions;
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our rights or obligations to
redeem or purchase the debt
securities;
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any sinking fund or other
provisions that would obligate us to repurchase or otherwise redeem some
or all of the debt
securities;
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conversion or exchange
provisions, if any, including conversion or exchange prices or rates and
adjustments thereto;
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the currency or currencies of
payment of principal or
interest;
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the terms applicable to any debt
securities issued at a discount from their stated principal
amount;
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the terms, if any, under which
any debt securities will rank junior to any of our other
debt;
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whether and upon what terms the
debt securities may be defeased, if different from the provisions set
forth in the indenture;
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if the amount of payments of
principal or interest is to be determined by reference to an index or
formula, or based on a coin or currency other than that in which the debt
securities are stated to be payable, the manner in which these amounts are
determined and the calculation agent, if any, with respect
thereto;
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the provisions, if any, relating
to any collateral provided for the debt
securities;
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if other than the entire
principal amount of the debt securities when issued, the portion of the
principal amount payable upon acceleration of maturity as a result of a
default on our obligations;
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the events of default and
covenants relating to the debt securities that are in addition to, modify
or delete those described in this
prospectus;
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the nature and terms of any
security for any secured debt securities;
and
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any other specific terms of any
debt securities.
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The
applicable prospectus supplement will present material U.S. federal income tax
considerations for holders of any debt securities and the securities exchange or
quotation system on which any debt securities are to be listed or
quoted.
Payment
of the principal of, premium and interest, if any, on senior debt securities
will rank on a parity with all of our other secured/unsecured and unsubordinated
debt.
Senior
Subordinated Debt Securities
Payment
of the principal of, premium and interest, if any, on senior subordinated debt
securities will be junior in right of payment to the prior payment in full of
all of our unsubordinated debt, including senior debt securities and any credit
facility. We will state in the applicable prospectus supplement relating to any
senior subordinated debt securities the subordination terms of the securities as
well as the aggregate amount of outstanding debt, as of the most recent
practicable date, that by its terms would be senior to the senior subordinated
debt securities. We will also state in such prospectus supplement limitations,
if any, on issuance of additional senior debt.
Subordinated
Debt Securities
Payment
of the principal of, premium and interest, if any, on subordinated debt
securities will be subordinated and junior in right of payment to the prior
payment in full of all of our senior debt, including our senior debt securities
and senior subordinated debt securities. We will state in the applicable
prospectus supplement relating to any subordinated debt securities the
subordination terms of the securities as well as the aggregate amount of
outstanding indebtedness, as of the most recent practicable date, that by its
terms would be senior to the subordinated debt securities. We will also state in
such prospectus supplement limitations, if any, on issuance of additional senior
indebtedness.
Conversion
or Exchange Rights
Debt
securities may be convertible into or exchangeable for other securities being
registered in this registration statement , including, for example, shares of
our equity securities. The terms and conditions of conversion or exchange
will be stated in the applicable prospectus supplement. The terms will include,
among others, the following:
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the conversion or exchange
price;
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the conversion or exchange
period;
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provisions regarding the ability
of us or the holder to convert or exchange the debt
securities;
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events requiring adjustment to
the conversion or exchange price;
and
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provisions affecting conversion
or exchange in the event of our redemption of the debt
securities.
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Consolidation,
Merger or Sale
Under the
covenants contained in the Indenture, which are in addition to the provisions of
our Certificate of Incorporation, we cannot consolidate or merge with or into,
or transfer or lease all or substantially all of our assets to, any person, and
we cannot permit any other person to consolidate with or merge into us, unless
(1) we will be the continuing corporation or (2) the successor
corporation or person to which our assets are transferred or leased is a
corporation organized under the laws of the United States, any state of the
United States or the District of Columbia and it expressly assumes our
obligations under the debt securities and the indenture. In addition, we cannot
complete such a transaction unless immediately after completing the transaction,
no event of default under the indenture, and no event which, after notice or
lapse of time or both, would become an event of default under the indenture,
shall have occurred and be continuing. When the person to whom our assets are
transferred or leased has assumed our obligations under the debt securities and
the indenture, we shall be discharged from all our obligations under the
debt securities and the indenture except in limited circumstances.
This
covenant would not apply to any recapitalization transaction, a change of
control of us or a highly leveraged transaction, unless the transaction or
change of control were structured to include a merger or consolidation or
transfer or lease of all or substantially all of our assets.
The term
“Event of Default,” when used in the indenture, unless otherwise indicated,
means any of the following:
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failure to pay interest for
30 days after the date payment is due and
payable;
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failure to pay principal or
premium, if any, on any debt security when due, either at maturity, upon
any redemption, by declaration or
otherwise;
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failure to make sinking fund
payments when due;
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failure to perform other
covenants for 60 days after notice that performance was
required;
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events in bankruptcy, insolvency
or reorganization relating to us;
or
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any other Event of Default
provided in the applicable officer’s certificate, resolution of our board
of directors or the supplemental indenture under which we issue a series
of debt securities.
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An Event
of Default for a particular series of debt securities does not necessarily
constitute an Event of Default for any other series of debt securities issued
under the indenture.
If an
Event of Default with respect to any series of senior debt securities occurs and
is continuing, then either the trustee for such series or the holders of a
majority in aggregate principal amount of the outstanding debt securities of
such series, by notice in writing, may declare the principal amount of and
interest on all of the debt securities of such series to be due and payable
immediately; provided, however, unless otherwise provided in the applicable
prospectus supplement, if such an Event of Default occurs and is continuing with
respect to more than one series of senior debt securities under the indenture,
the trustee for such series or the holders of a majority in aggregate principal
amount of the outstanding debt securities of all such series of senior debt
securities of equal ranking (or, if any of such senior debt securities are
discount securities, such portion of the principal amount as may be specified in
the terms of that series), voting as one class, may make such declaration of
acceleration as to all series of such equal ranking and not the holders of the
debt securities of any one of such series of senior debt
securities.
If an
Event of Default with respect to any series of subordinated securities occurs
and is continuing, then either the trustee for such series or the holders of a
majority in aggregate principal amount of the outstanding debt securities of
such series, by notice in writing, may declare the principal amount of and
interest on all of the debt securities of such series to be due and payable
immediately; provided, however, unless otherwise provided in the applicable
prospectus supplement, if such an Event of Default occurs and is continuing with
respect to more than one series of subordinated securities under the indenture,
the trustee for such series or the holders of a majority in aggregate principal
amount of the outstanding debt securities of all such series of subordinated
securities of equal ranking (or, if any of such subordinated securities are
discount securities, such portion of the principal amount as may be specified in
the terms of that series), voting as one class, may make such declaration of
acceleration as to all series of equal ranking and not the holders of the
debt securities of any one of such series of subordinated securities. The
holders of not less than a majority in aggregate principal amount of the debt
securities of all affected series of equal ranking may, after satisfying certain
conditions, rescind and annul any of the above-described declarations and
consequences involving such series.
If an
Event of Default relating to events in bankruptcy, insolvency or reorganization
of us occurs and is continuing, then the principal amount of all of the debt
securities outstanding, and any accrued interest, will automatically become due
and payable immediately, without any declaration or other act by the trustee or
any holder.
The
indenture imposes limitations on suits brought by holders of debt securities
against us. Except for actions for payment of overdue principal or interest, no
holder of debt securities of any series may institute any action against us
under the indenture unless:
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the holder has previously given
to the trustee written notice of default and continuance of such
default;
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the holders of not less than a
majority in principal amount of the outstanding debt securities of the
affected series of equal ranking have requested that the trustee institute
the action;
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the requesting holders have
offered the trustee reasonable indemnity for expenses and liabilities that
may be incurred by bringing the
action;
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the trustee has not instituted
the action within 60 days of the request;
and
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the trustee has not received
inconsistent direction by the holders of a majority in principal amount of
the outstanding debt securities of the affected series of equal
ranking.
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Registered
Global Securities and Book Entry System
The debt
securities of a series may be issued in whole or in part in book-entry form and
may be represented by one or more fully registered global securities or in
unregistered form with or without coupons. We will deposit any registered global
securities with a depositary or with a nominee for a depositary identified in
the applicable prospectus supplement and registered in the name of such
depositary or nominee. In such case, we will issue one or more registered global
securities denominated in an amount equal to the aggregate principal amount of
all of the debt securities of the series to be issued and represented by such
registered global security or securities. This means that we will not issue
certificates to each holder.
Unless
and until it is exchanged in whole or in part for debt securities in definitive
registered form, a registered global security may not be transferred except as a
whole:
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by the depositary for such
registered global security to its
nominee;
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by a nominee of the depositary to
the depositary or another nominee of the depositary;
or
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by the depositary or its nominee
to a successor of the depositary or a nominee of the
successor.
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The
prospectus supplement relating to a series of debt securities will describe the
specific terms of the depositary arrangement involving any portion of the series
represented by a registered global security. We anticipate that the following
provisions will apply to all depositary arrangements for registered debt
securities:
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ownership of beneficial interests
in a registered global security will be limited to persons that have
accounts with the depositary for such registered global security, these
persons being referred to as “participants,” or persons that may hold
interests through
participants;
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upon the issuance of a registered
global security, the depositary for the registered global security will
credit, on its book-entry registration and transfer system, the
participants’ accounts with the respective principal amounts of the debt
securities represented by the registered global security beneficially
owned by the participants;
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any dealers, underwriters, or
agents participating in the distribution of the debt securities
represented by a registered global security will designate the accounts to
be credited; and
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ownership of beneficial interest
in such registered global security will be shown on, and the transfer of
such ownership interest will be effected only through, records maintained
by the depositary for such registered global security for interests of
participants, and on the records of participants for interests of persons
holding through
participants.
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The laws
of some states may require that specified purchasers of securities take physical
delivery of the securities in definitive form. These laws may limit the ability
of those persons to own, transfer or pledge beneficial interests in registered
global securities.
So long
as the depositary for a registered global security, or its nominee, is the
registered owner of such registered global security, the depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
debt securities represented by the registered global security for all purposes
under the indenture. Except as stated below, owners of beneficial interests in a
registered global security:
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will not be entitled to have the
debt securities represented by a registered global security registered in
their names;
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will not receive or be entitled
to receive physical delivery of the debt securities in the definitive
form; and
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will not be considered the owners
or holders of the debt securities under the relevant
indenture.
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Accordingly,
each person owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for the registered global security and,
if the person is not a participant, on the procedures of a participant through
which the person owns its interest, to exercise any rights of a holder under the
indenture.
We will
make payments of principal and premium, if any, and interest, if any, on debt
securities represented by a registered global security registered in the name of
a depositary or its nominee to the depositary or its nominee, as the case may
be, as the registered owners of the registered global security. None of us, the
trustee or any other agent of ours or the trustee will be responsible or liable
for any aspect of the records relating to, or payments made on account of,
beneficial ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to the beneficial
ownership interests.
We expect
that the depositary for any debt securities represented by a registered global
security, upon receipt of any payments of principal and premium, if any, and
interest, if any, in respect of the registered global security, will immediately
credit participants’ accounts with payments in amounts proportionate to their
respective beneficial interests in the registered global security as shown on
the records of the depositary. We also expect that standing customer
instructions and customary practices will govern payments by participants to
owners of beneficial interests in the registered global security held through
the participants, as is now the case with the securities held for the accounts
of customers in bearer form or registered in “street name.” We also expect that
any of these payments will be the responsibility of the
participants.
If the
depositary for any debt securities represented by a registered global security
is at any time unwilling or unable to continue as depositary or stops being a
clearing agency registered under the Exchange Act, we will appoint an eligible
successor depositary. If we fail to appoint an eligible successor depositary
within 90 days, we will issue the debt securities in definitive form in
exchange for the registered global security. In addition, we may at any time and
in our sole discretion decide not to have any of the debt securities of a series
represented by one or more registered global securities. In that event, we will
issue debt securities of the series in a definitive form in exchange for all of
the registered global securities representing the debt securities. The trustee
will register any debt securities issued in definitive form in exchange for a
registered global security in the name or names as the depositary, based upon
instructions from its participants, shall instruct the trustee.
We may
also issue bearer debt securities of a series in the form of one or more global
securities, referred to as “bearer global securities.” The prospectus supplement
relating to a series of debt securities represented by a bearer global security
will describe the applicable terms and procedures. These will include the
specific terms of the depositary arrangement and any specific procedures for the
issuance of debt securities in definitive form in exchange for a bearer global
security, in proportion to the series represented by a bearer global
security.
Discharge,
Defeasance and Covenant Defeasance
We can
discharge or decrease our obligations under the indenture as stated
below.
We may
discharge obligations to holders of any series of debt securities that have not
already been delivered to the trustee for cancellation and that have either
become due and payable or are by their terms to become due and payable, or are
scheduled for redemption, within sixty (60) days. We may effect a discharge
by irrevocably depositing with the trustee cash or U.S. government obligations,
as trust funds, in an amount certified to be enough to pay when due, whether at
maturity, upon redemption or otherwise, the principal of, premium and interest,
if any, on the debt securities and any mandatory sinking fund
payments.
Unless
otherwise provided in the applicable prospectus supplement, we may also
discharge any and all of our obligations to holders of any series of debt
securities at any time, which we refer to as defeasance. We may also be released
from the obligations imposed by any covenants of any outstanding series of debt
securities and provisions of the indenture, and we may omit to comply with those
covenants without creating an event of default under the trust declaration,
which we refer to as covenant defeasance. We may effect defeasance and covenant
defeasance only if, among other things:
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we irrevocably deposit with the
trustee cash or U.S. government obligations, as trust funds, in an amount
certified to be enough to pay at maturity, or upon redemption, the
principal, premium and interest, if any, on all outstanding debt
securities of the series;
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we deliver to the trustee an
opinion of counsel from a nationally recognized law firm to the effect
that the holders of the series of debt securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
the defeasance or covenant defeasance and that defeasance or covenant
defeasance will not otherwise alter the holders’ U.S. federal income tax
treatment of principal, premium and interest, if any, payments on the
series of debt securities;
and
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·
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in the case of subordinated debt
securities, no event or condition shall exist that, based on the
subordination provisions applicable to the series, would prevent us from
making payments of principal of, premium and interest, if any, on any of
the applicable subordinated debt securities at the date of the irrevocable
deposit referred to above or at any time during the period ending on the
91st day after the deposit
date.
|
In the
case of a defeasance by us, the opinion we deliver must be based on a ruling of
the Internal Revenue Service issued, or a change in U.S. federal income tax law
occurring, after the date of the indenture, since such a result would not occur
under the U.S. federal income tax laws in effect on such date.
Although
we may discharge or decrease our obligations under the indenture as described in
the two preceding paragraphs, we may not avoid, among other things, our duty to
register the transfer or exchange of any series of debt securities, to replace
any temporary, mutilated, destroyed, lost or stolen series of debt securities or
to maintain an office or agency in respect of any series of debt
securities.
Modification
of the Indenture
The
indenture provides that we and the trustee may enter into supplemental
indentures without the consent of the holders of debt securities
to:
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·
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secure any debt securities and
provide the terms and conditions for the release or substitution of the
security;
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·
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evidence the assumption by a
successor corporation of our
obligations;
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·
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add covenants for the protection
of the holders of debt
securities;
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·
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add any additional events of
default;
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·
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cure any ambiguity or correct any
inconsistency or defect in the
indenture;
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·
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add to, change or eliminate any
of the provisions of the indenture in a manner that will become effective
only when there is no outstanding debt security which is entitled to the
benefit of the provision as to which the modification would
apply;
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·
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establish the forms or terms of
debt securities of any
series;
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·
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eliminate any conflict between
the terms of the indenture and the Trust Indenture Act of
1939;
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·
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evidence and provide for the
acceptance of appointment by a successor trustee and add to or change any
of the provisions of the indenture as is necessary for the administration
of the trusts by more than one trustee;
and
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·
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make any other provisions with
respect to matters or questions arising under the indenture that will not
be inconsistent with any provision of the indenture as long as the new
provisions do not adversely affect the interests of the holders of any
outstanding debt securities of any series created prior to the
modification.
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The
indenture also provides that we and the trustee may, with the consent of the
holders of not less than a majority in aggregate principal amount of debt
securities of all series of senior debt securities or of Subordinated Securities
of equal ranking, as the case may be, then outstanding and affected, voting as
one class, add any provisions to, or change in any manner, eliminate or modify
in any way the provisions of, the indenture or modify in any manner the rights
of the holders of the debt securities. We and the trustee may not, however,
without the consent of the holder of each outstanding debt security affected
thereby:
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extend the final maturity of any
debt security;
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·
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reduce the principal amount or
premium, if any;
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·
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reduce the rate or extend the
time of payment of interest;
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reduce any amount payable on
redemption or impair or affect any right of redemption at the option of
the holder of the debt
security;
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·
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change the currency in which the
principal, premium or interest, if any, is
payable;
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·
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reduce the amount of the
principal of any debt security issued with an original issue discount that
is payable upon acceleration or provable in
bankruptcy;
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·
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alter provisions of the relevant
indenture relating to the debt securities not denominated in U.S.
dollars;
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·
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impair the right to institute
suit for the enforcement of any payment on any debt security when
due;
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·
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if applicable, adversely affect
the right of a holder to convert or exchange a debt security;
or
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·
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reduce the percentage of holders
of debt securities of any series whose consent is required for any
modification of the
indenture.
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The
indenture provides that the holders of not less than a majority in aggregate
principal amount of the then outstanding debt securities of any and all affected
series of equal ranking, by notice to the relevant trustee, may on behalf of the
holders of the debt securities of any and all such series of equal ranking waive
any default and its consequences under the indenture except:
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a continuing default in the
payment of interest on, premium, if any, or principal of, any such debt
security held by a non-consenting holder;
or
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·
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a default in respect of a
covenant or provision of the indenture that cannot be modified or amended
without the consent of the holder of each outstanding debt security of
each series affected.
|
Concerning
the Trustee
The
indenture provides that there may be more than one trustee under the indenture,
each for one or more series of debt securities. If there are different trustees
for different series of debt securities, each trustee will be a trustee of a
trust under the indenture separate and apart from the trust administered by any
other trustee under that indenture.
Except as
otherwise indicated in this prospectus or any prospectus supplement, any action
permitted to be taken by a trustee may be taken by such trustee only on the one
or more series of debt securities for which it is the trustee under the
indenture. Any trustee under the indenture may resign or be removed from one or
more series of debt securities. All payments of principal of, premium and
interest, if any, on, and all registration, transfer, exchange, authentication
and delivery of, the debt securities of a series will be effected by the trustee
for that series at an office designated by the trustee.
If the
trustee becomes a creditor of ours, the indenture places limitations on the
right of the trustee to obtain payment of claims or to realize on property
received in respect of any such claim as security or otherwise. The trustee may
engage in other transactions. If it acquires any conflicting interest relating
to any duties concerning the debt securities, however, it must eliminate the
conflict or resign as trustee.
The
holders of a majority in aggregate principal amount of any and all affected
series of debt securities of equal ranking then outstanding will have the right
to direct the time, method and place of conducting any proceeding for exercising
any remedy available to the trustee concerning the applicable series of debt
securities, provided that the direction:
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·
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would not conflict with any rule
of law or with the relevant
indenture;
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·
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would not be unduly prejudicial
to the rights of another holder of the debt
securities;
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·
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and would not involve any trustee
in personal liability.
|
The
indenture provides that in case an Event of Default shall occur, not be cured
and be known to any trustee, the trustee must use the same degree of care as a
prudent person would use in the conduct of his or her own affairs in the
exercise of the trustee’s power. The trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request of any
of the holders of the debt securities, unless they shall have offered to the
trustee security and indemnity satisfactory to the trustee.
No
Individual Liability of Incorporators, Stockholders, Officers or
Directors
The
indenture provides that no incorporator and no past, present or future
stockholder, officer or director of ours or any successor corporation in their
capacity as such shall have any individual liability for any of our obligations,
covenants or agreements under the debt securities or the
indenture.
DESCRIPTION
OF UNITS
We may
issue units comprised of one or more of the other securities described in this
prospectus 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.
The
applicable prospectus supplement may describe:
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·
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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 for the issuance,
payment, settlement, transfer or exchange of the units or of the
securities comprising the units;
and
|
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·
|
any additional terms of the
governing unit agreement.
|
The
applicable prospectus supplement will describe the terms of any units. The
preceding description and any description of units in the applicable prospectus
supplement does not purport to be complete and is subject to and is qualified in
its entirety by reference to the unit agreement and, if applicable, collateral
arrangements and depositary arrangements relating to such units.
PLAN OF DISTRIBUTION
We may
sell the securities offered by this prospectus in any one or more of the
following ways from time to time:
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directly to investors, including
through a specific bidding, auction or other
process;
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·
|
to investors through
agents;
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·
|
to or through brokers or
dealers;
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·
|
to the public through
underwriting syndicates led by one or more managing
underwriters;
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·
|
to one or more underwriters
acting alone for resale to investors or to the public;
and
|
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·
|
through a combination of any such
methods of sale.
|
We may
also sell and distribute the securities offered by this prospectus from time to
time in one or more transactions, including in “at the market offerings” within
the meaning of Rule 415(a)(4) of the Securities Act, to or through a market
maker or into an existing trading market, on an exchange or otherwise. We
may sell our securities through a rights offering, forward contracts or similar
arrangements.
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·
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the name or names of any
underwriters, dealers or
agents;
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|
·
|
the purchase price of the
securities and the proceeds to us from the
sale;
|
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·
|
any over-allotment options under
which underwriters may purchase additional securities from
us;
|
|
·
|
any underwriting discounts and
other items constituting compensation to underwriters, dealers or
agents;
|
|
·
|
any public offering
price;
|
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·
|
any discounts or concessions
allowed or reallowed or paid to dealers;
and
|
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·
|
any securities exchange or market
on which the securities offered in the prospectus supplement may be
listed.
|
Only
those underwriters identified in such prospectus supplement are deemed to be
underwriters in connection with the securities offered in the prospectus
supplement. Any underwritten offering may be on a best efforts or a firm
commitment basis.
The
distribution of the securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, at varying prices
determined at the time of sale, or at prices determined as the applicable
prospectus supplement specifies. The securities may be sold through a rights
offering, forward contracts or similar arrangements. In any distribution of
subscription rights to stockholders, if all of the underlying securities are not
subscribed for, we may then sell the unsubscribed securities directly to third
parties or may engage the services of one or more underwriters, dealers or
agents, including standby underwriters, to sell the unsubscribed securities to
third parties.
In
connection with the sale of the securities, underwriters, dealers or agents may
be deemed to have received compensation from us in the form of underwriting
discounts or commissions and also may receive commissions from securities
purchasers for whom they may act as agent. Underwriters may sell the securities
to or through dealers, and the dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for whom they may act as agent. The maximum commission or
discount to be received by any FINRA member firm or independent broker/dealer
will not be greater than eight percent (8%) of the gross proceeds received by us
for the sale of any securities.
We will
provide in the applicable prospectus supplement information regarding any
underwriting discounts or other compensation that we pay to underwriters or
agents in connection with the securities offering, and any discounts,
concessions or commissions which underwriters allow to dealers. Underwriters,
dealers and agents participating in the securities distribution may be deemed to
be underwriters, and any discounts and commissions they receive and any profit
they realize on the resale of the securities may be deemed to be underwriting
discounts and commissions under the Securities Act. Underwriters and their
controlling persons, dealers and agents may be entitled, under agreements
entered into with us, to indemnification against and contribution toward
specific civil liabilities, including liabilities under the Securities
Act.
Unless
otherwise specified in the related prospectus supplement, each series of
securities will be a new issue with no established trading market, other than
shares of common stock, which are listed on the Nasdaq Global Market. Any common
stock sold pursuant to a prospectus supplement will be listed on the Nasdaq
Global Market, subject to official notice of issuance. We may elect to list any
series of debt securities or preferred stock, on an exchange, but we are not
obligated to do so. It is possible that one or more underwriters may make a
market in the securities, but such underwriters will not be obligated to do so
and may discontinue any market making at any time without notice. No assurance
can be given as to the liquidity of, or the trading market for, any offered
securities.
In
connection with an offering, the underwriters may purchase and sell securities
in the open market. These transactions may include short sales, stabilizing
transactions and purchases to cover positions created by short sales. Short
sales involve the sale by the underwriters of a greater number of securities
than they are required to purchase in an offering. Stabilizing transactions
consist of bids or purchases made for the purpose of preventing or retarding a
decline in the market price of the securities while an offering is in progress.
The underwriters also may impose a penalty bid. This occurs when a particular
underwriter repays to the underwriters a portion of the underwriting discount
received by it because the underwriters have repurchased securities sold by or
for the account of that underwriter in stabilizing or short-covering
transactions. These activities by the underwriters may stabilize, maintain or
otherwise affect the market price of the securities. As a result, the price of
the securities may be higher than the price that otherwise might exist in the
open market. If these activities are commenced, they may be discontinued by the
underwriters at any time. Underwriters may engage in overallotment. If any
underwriters create a short position in the securities in an offering in which
they sell more securities than are set forth on the cover page of the applicable
prospectus supplement, the underwriters may reduce that short position by
purchasing the securities in the open market.
LEGAL MATTERS
The
validity of the securities offered will be passed upon for us by Morris, Manning
& Martin, LLP, Atlanta, Georgia.
The
financial statements incorporated by reference in this prospectus have been
audited by EFP Rotenberg, LLP, an independent registered public accounting firm,
to the extent and for the periods set forth in their reports incorporated herein
by reference, and are included in reliance upon such reports given upon the
authority of said firm as experts in auditing and accounting.
We have
filed a registration statement on Form S-3 with the Securities and Exchange
Commission in connection with this offering. We file annual, quarterly and
current reports, proxy statements and other information with the Securities and
Exchange Commission. You may read and copy the registration statement and any
other documents we have filed at the Securities and Exchange Commission’s Public
Reference Room 100 F Street, N.E., Washington, D.C. 20549. Please call the
Securities and Exchange Commission at 1-800-SEC-0330 for further information on
the Public Reference Room. Our Securities and Exchange Commission filings are
also available to the public at the Securities and Exchange Commission’s
Internet site at www.sec.gov.
This
prospectus is part of the registration statement and does not contain all of the
information included in the registration statement. Whenever a reference is made
in this prospectus to any of our contracts or other documents, the reference may
not be complete and, for a copy of the contract or document, you should refer to
the exhibits that are a part of the registration statement.
The SEC
allows us to “incorporate by reference” in this prospectus certain of the
information we file with the SEC. This means we can disclose important
information to you by referring you to another document that has been filed
separately with the SEC. The information incorporated by reference is considered
to be part of this prospectus, and will modify and supersede the information
included in this prospectus to the extent that the information included as
incorporated by reference modifies or supersedes the existing information. Any
statement so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
We
incorporate by reference the documents listed below, all filings filed by us
pursuant to the Exchange Act after the date of the initial registration
statement of which this prospectus forms a part prior to effectiveness of such
registration statement, and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
prior to the time that all securities covered by this prospectus have been sold;
provided, however, that we are not incorporating any information furnished under
either Item 2.02 or Item 7.01 of any current report on Form
8-K:
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·
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Our Annual Report on Form 10-K
for the fiscal year ended December 31, 2008, filed March 30,
2009;
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·
|
Our
amendment to our Annual Report, on Form 10-K/A, for the fiscal year
ended December 31, 2008, filed April 1,
2009;
|
|
·
|
Our Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 2009, filed on May 13,
2009;
|
|
·
|
Our Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 2009, filed on August 13,
2009;
|
|
·
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30,
2009, filed on November 13, 2009;
|
|
|
Our definitive proxy statement
related to our 2009 annual meeting of stockholders held on June 10, 2009,
filed April 20, 2009;
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·
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The description of our common
stock contained in our registration statement on Form 8-A, filed on April
30, 1984, and any amendment or report filed for the purpose of updating
that description.
An updated description of our
capital stock is included in this prospectus under “Description of Common
Stock” and “Description of Preferred
Stock.”
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|
·
|
Our
Current Reports on Form 8-K dated June 23, 2009 and October 16, 2009, and
the amendment to our October 16, 2009 8-K filed on October 30,
2009.
|
Any
statement made in this prospectus concerning the contents of any contract,
agreement or other document is only a summary of the actual document. You may
obtain a copy of any document summarized in this prospectus and any or all of
the information that has been incorporated by reference in this prospectus at no
cost by writing or calling us at our mailing address and telephone number: Mr.
Zili Chen, SORL Auto Parts, No. 1169 Yumeng Road, Ruian Economic Development
District, Ruian City, Zhejiang Province, People’s Republic of China, telephone
number 86-577-65817720. Each statement regarding a contract, agreement or other
document is qualified in its entirety by reference to the actual
document.
You may
read and copy all materials that we have filed with the SEC at the SEC’s Public
Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. Additionally, all reports and documents that we have filed with
the SEC can be obtained from the SEC’s Internet Site at http://www.sec.gov, or
by visiting our website at
www.sorl.com.cn
.
SORL Auto Parts,
Inc.
$80,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
PROSPECTUS
, 2009
You should rely only on the
information contained in this prospectus. No dealer, salesperson or other person
is authorized to give information that is not contained in this prospectus. This
prospectus is not an offer to sell nor is it seeking an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted. The
information contained in this prospectus is correct only as of the date of this
prospectus, regardless of the time of the delivery of this prospectus or the
sale of these securities.
PART
II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14. Other expenses of
issuance and distribution
The
following table sets forth the estimated costs and expenses, other than the
underwriting discounts and commissions, payable by the registrant in connection
with the offering of the securities being registered. All the amounts shown are
estimates, except for the registration fee:
Securities
and Exchange Commission registration fee
|
|
$
|
5,704
|
|
Accounting
fees and expenses
|
|
$
|
2,000
|
|
Legal
fees and expenses
|
|
$
|
15,000
|
|
Printing
fees and expenses
|
|
$
|
4,000
|
|
Miscellaneous
|
|
$
|
500
|
|
Total
|
|
$
|
27,204
|
|
Item 15. Indemnification of
directors and officers
Section 145
of the Delaware General Corporation Law, or DGCL, provides that a corporation
may indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed actions, suits or proceedings in which such
person is made a party by reason of such person being or having been a director,
officer, employee or agent of ours. The DGCL provides that Section 145 is
not exclusive of other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 102(b)(7)
of the DGCL permits a corporation to provide in its certificate of incorporation
that a director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability for any breach of the director’s duty
of loyalty to the corporation or its stockholders, for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, for unlawful payments of dividends or unlawful stock repurchases,
redemptions or other distributions, or for any transaction from which the
director derived an improper personal benefit.
Our
certificate of incorporation provides that a director shall not be liable to us
or our stockholders for monetary damages for breach of fiduciary duty as a
director to the fullest extent permitted by Delaware law. In addition, our
Certificate of Incorporation and bylaws provide that each person who was or is a
party or is threatened to be made a party to, or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director or officer shall be indemnified and held harmless to the fullest
extent permitted by Delaware law. The right to indemnification conferred in our
Certificate of Incorporation and bylaws also includes the right to advancement
of all expenses incurred in connection with any such proceeding in advance of
its final disposition to the fullest extent authorized by Delaware law. We have
similar provisions that cover indemnification and advancement of expenses of our
other employees and agents; however, those provisions are permissive rather than
mandatory in nature
Our
bylaws further provide that we have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
ours against any expense, liability or loss incurred by such person in any such
capacity or arising out of his status as such, whether or not we would have the
power to indemnify him against such liability under Delaware law. We have also
obtained directors’ and officers’ liability insurance, which insures against
liabilities that our directors or officers may incur in such capacities for a
wrongful act.
Item 16. Exhibits and financial
statement schedules
(a) Exhibits
Pursuant to Item 601 of Regulation S-K:
The list
of exhibits in the Exhibit Index to this prospectus is incorporated herein
by reference.
Item 17.
Undertakings
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or 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) To
file, if applicable, an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act of 1939 in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of
1939.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective date.
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used after
effectiveness. 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 first use, 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 date of first use.
(6) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, in a
primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The
undersigned registrant hereby undertakes that:
(1) For
purposes of determining liability under the 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 of 1933, 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.
(d) 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
a 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned thereunto duly authorized, in the City of
Ruian, Zhejiang Province, People's Republic of China, on January 12,
2010.
|
SORL
AUTO PARTS, INC.
|
|
|
|
|
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By:
|
/s/
Xiaoping Zhang
|
|
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Name:
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Xiaoping
Zhang
|
|
|
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Title:
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Chairman
and Chief Executive 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
|
|
|
|
|
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/s/ Xiao Ping Zhang
|
|
Chairman
and Chief Executive Officer
|
|
January
12, 2010
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Xiao
Ping Zhang
|
|
|
|
|
|
|
|
|
|
*
|
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Director
and Chief Operating Officer
|
|
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Xiao
Feng Zhang
|
|
|
|
|
|
|
|
|
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*
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Chief
Financial Officer and Principal Accounting Officer
|
|
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Zong
Yun Zhou
|
|
|
|
|
|
|
|
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*
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Director
|
|
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Li
Min Zhang
|
|
|
|
|
|
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|
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*
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Director
|
|
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Zhi
Zhong Wang
|
|
|
|
|
|
|
|
|
|
*
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Director
|
|
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Yi
Guang Huo
|
|
|
|
|
|
|
|
|
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*
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Director
|
|
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Jiang
Hua Feng
|
|
|
|
|
|
|
|
|
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*
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Director
|
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Jung
Kang Chang
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* By: Xiaoping Zhang, attorney-in-fact
INDEX
TO EXHIBITS
EXHIBIT NO.
|
|
IDENTIFICATION OF
EXHIBIT
|
|
|
|
1.1
|
|
Underwriting
Agreement.+
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation of the registrant as filed with
the Secretary of State of Delaware. (Incorporated by reference to
Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on June
23, 2009).
|
|
|
|
3.2
|
|
Amended
and Restated Bylaws of the Registrant. (Incorporated by reference to
Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on March
17, 2009)
|
|
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4.1
|
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Specimen
Certificate for Registrant’s Common Stock. **
|
|
|
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4.2
|
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Certificate
of Designation for Preferred Stock. +
|
|
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4.3
|
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Form
of Preferred Stock Certificate. +
|
|
|
|
4.4
|
|
Form
of Indenture relating to debt securities. **
|
|
|
|
4.5
|
|
Form
of supplemental indenture or other instrument establishing the issuance of
one or more series of senior debt securities or subordinated debt
securities (including the form of such debt security).
+
|
|
|
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4.6
|
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Form
of Warrant Agreement (including form of Warrant) +
|
|
|
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4.7
|
|
Form
of Unit Agreement (including form of Unit Certificate)
+
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|
|
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5.1
|
|
Opinion
of Morris, Manning & Martin, LLP.*
|
|
|
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12.1
|
|
Statement
re: Computation of Ratios.**
|
|
|
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23.1
|
|
Consent
of EFP Rotenberg, LLC.*
|
|
|
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23.3
|
|
Consent
of Morris, Manning & Martin, LLP (included in Exhibit 5.1).*
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|
|
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24
|
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Power
of Attorney.**
|
|
|
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25
|
|
Form
T-1 Statement of Eligibility of the trustee for the debt securities. ***
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+
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To be filed by amendment or
pursuant to a report to be filed pursuant to Section 13 or 15(d) of the
Exchange Act, if applicable, and incorporated herein by
reference.
|
**
|
Previously
filed.
|
***
|
To be filed separately pursuant
to Section 305(b)(2) of the Trust Indenture Act of 1939, if
applicable.
|
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