As filed with the Securities and Exchange Commission on December
27, 2018.
Registration No. 333-228734
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
ACM
RESEARCH, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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94-3290283
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(State or other
jurisdiction of incorporation or
organization)
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(I.R.S.
Employer Identification Number)
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42307 Osgood
Road, Suite I, Fremont, California 94539
(510)
445-3700
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
David H.
Wang
Chief Executive
Officer and President
ACM Research,
Inc.
42307 Osgood
Road, Suite I, Fremont, California 94539
(510)
445-3700
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
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Mark L. Johnson
Bella Zaslavsky
K&L Gates LLP
One Lincoln Street, Boston, Massachusetts 02111
(617) 261-3100
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Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement
is declared effective.
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following
box. ☒
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. ☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same
offering. ☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective on filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box. ☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated
filer
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☐
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Smaller reporting company
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☒
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Emerging growth
company
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☒
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities
Act. ☒
EXPLANATORY NOTE
This
Amendment No. 1 to Registration Statement on Form S-3 (File No.
333-228734) of ACM Research, Inc. is being filed solely for the
purpose of filing Exhibit 5.01. Accordingly, this Amendment No. 1
consists of only the facing page, this explanatory note and Part II
of the Registration Statement. The prospectus constituting Part I
of the Registration Statement is unchanged and has therefore been
omitted.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The
following (other than the fees of the Securities and Exchange
Commission, or SEC, and the Financial Industry Regulatory
Authority, or FINRA) are estimates of the expenses that the
registrant may incur in connection with the offering and sale of
the securities being registered hereby. All such expenses are to be
paid by the registrant.
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SEC registration
fee
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$12,120
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FINRA filing
fee
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15,500
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Accounting fees and
expenses
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*
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Exchange listing
fee
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*
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Legal fees and
expenses
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*
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Printing
expenses
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*
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Transfer agent fees
and expenses
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*
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Trustee fees and
expenses
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*
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Warrant agent fees
and expenses
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*
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Miscellaneous
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*
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Total
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___________
*
Because these
amounts are based on the securities offered and the number of
issuances, they cannot be estimated at this time and will be
reflected in the applicable prospectus supplements.
Item 15. Indemnification of Directors and Officers
Sections
145 and 102(b)(7) of the General Corporation Law of the State of
Delaware provide that a corporation may indemnify any person made a
party to an action by reason of the fact that the person was a
director, officer, employee or agent of the corporation or is or
was serving at the request of a corporation against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person
in connection with such action if the person acted in good faith
and in a manner the person reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe the person’s conduct was unlawful, except that, in
the case of an action by or in right of the corporation, no
indemnification may generally be made in respect of any claim as to
which the person is adjudged to be liable to the
corporation.
The
registrant’s charter contains provisions that eliminate, to
the maximum extent permitted by the General Corporation Law of the
State of Delaware, the personal liability of the registrant’s
directors for monetary damages for breach of their fiduciary duties
as directors. The registrant’s bylaws provide that the
registrant must indemnify its directors and officers and may
indemnify its employees and other agents to the fullest extent
permitted by the General Corporation Law of the State of
Delaware.
The
registrant has entered into indemnification agreements with its
directors and executive officers, in addition to the
indemnification provided by its bylaws, and intends to enter into
indemnification agreements with any new directors and executive
officers in the future.
The
registrant has purchased and intends to maintain insurance on
behalf of any person who is or was a director or officer of the
registrant against any loss arising from any claim asserted against
the person and incurred by the person in any such capacity, subject
to certain exclusions.
In any
underwriting agreement the registrant enters into in connection
with the offering of securities being registered hereby, the
underwriters may agree to indemnify, under certain conditions, the
registrant’s directors and officers (as well as certain other
persons) against certain liabilities arising in connection with
such offering.
Item 16. Exhibits
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Exhibit No.
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Description
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1.01*
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Form of
Underwriting Agreement
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Restated
Certificate of Incorporation of ACM Research, Inc., as
amended
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Restated
Bylaws of ACM Research, Inc.
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Restated
Certificate of Incorporation of ACM Research, Inc., as
amended
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Restated
Bylaws of ACM Research, Inc.
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Second
Amended and Restated Registration Rights Agreement between ACM
Research, Inc. and certain of its stockholders
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Form of
Class A Common Stock Certificate
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4.05*
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Form of
Preferred Stock Certificate
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4.06*
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Form of
Senior Indenture
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4.07*
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Form of
Subordinated Indenture
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4.08*
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Form of
Senior Note
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4.09*
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Form of
Subordinated Note
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4.10*
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Form of
Warrant
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4.11*
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Form of
Warrant Agreement
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4.12*
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Form of
Unit Agreement
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Opinion
of K&L Gates LLP
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Consent
of BDO China Shu Lun Pan Certified Public Accountants
LLP
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23.02
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Consent
of K&L Gates LLP (included in Exhibit 5.01)
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24.01
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Powers
of Attorney (included on the signature page of the Registration
Statement as originally filed)
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25.01*
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Statement
of Eligibility on Form T‑1 under the Trust
Indenture Act of 1939 of the Trustee under the Senior
Indenture
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25.02*
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Statement
of Eligibility on Form T‑1 under the Trust
Indenture Act of 1939 of the Trustee under the Subordinated
Indenture
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*
To be filed by
amendment or incorporated by reference in connection with an
offering of securities.
Item 17. Undertakings
(a)
The undersigned
registrant hereby undertakes:
(1)
To file, during any
period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i)
to include any
prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
to reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post- effective
amendment thereof) that, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii), and (a)(1)(iii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
SEC by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is a part of the
registration statement.
(2)
That, for the
purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3)
To remove from
registration by means of a post-effective amendment any of the
securities being registered that remain unsold at the termination
of the offering.
(4)
That, for the
purpose of determining liability under the Securities Act of 1933
to any purchaser:
(A)
each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement, and
(B)
each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(5)
That, for the
purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i)
any preliminary
prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule
424;
(ii)
any free writing
prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
the portion of any
other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant.
and
(iv)
any other
communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b)
The undersigned
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c)
Insofar as
indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
(d)
The undersigned
registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the SEC
under Section 305(b)(2) of the Trust Indenture Act of
1939.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 1 to Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fremont, State of California, on
December 26, 2018.
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ACM RESEARCH,
INC.
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By:
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/s/ David H. Wang
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David H.
Wang
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Chief Executive
Officer and President
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to Registration Statement has been signed by the
following persons on behalf of the registrant in the capacities
indicated on December 26, 2018.
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Signature
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Title
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/s/
David H.
Wang
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Chief
Executive Officer, President
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David
H. Wang
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and
Chair of the Board (Principal
Executive Officer)
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*
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Interim
Chief Financial Officer,
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Lisa
Feng
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Chief
Accounting Officer and Treasurer (Principal Financial and Accounting
Officer)
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Director
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Haiping
Dun
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Director
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Chenming
Hu
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Director
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Tracy
Liu
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*
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Director
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Yinan
Xiang
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Director
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Zhengfan
Yang
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*
By:
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/s/
David H.
Wang
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David
H. Wang, Attorney-in-fact
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Exhibit 5.01
K&L
Gates LLP
State
Street Financial Center, One Lincoln Street
Boston,
Massachusetts 02111-2950
December
27, 2018
ACM
Research, Inc.
42307
Osgood Road, Suite I
Fremont,
California 94539
Ladies
and Gentlemen:
We have
acted as counsel to ACM Research, Inc., a Delaware corporation (the
“Company”), in
connection with the Company’s filing with the Securities and
Exchange Commission (the “Commission”) of a registration
statement on Form S-3 (File No. 333-228734) (as initially
filed on December 10, 2018, and as subsequently amended, the
“Registration
Statement”), including a base prospectus (the
“Base
Prospectus”) that provides it will be supplemented by
one or more prospectus supplements (each such prospectus
supplement, together with the Base Prospectus, a
“Prospectus”),
under the Securities Act of 1933, as amended (the
“1933 Act”),
for the proposed issuance and sale by the Company of up to
$100,000,000 in offering price of (a) shares of the Company’s
Class A common stock, $0.0001 par value per share
(“Class A Common
Shares”), (b) shares of one or more series of the
Company’s preferred stock, $0.0001 par value per share
(“Preferred
Shares”), (c) one or more series of the
Company’s debt securities (collectively, “Debt Securities”) to be issued
under indentures to be entered into between the Company and the
respective trustees party thereto and one or more board
resolutions, supplements thereto or officers’ certificates
thereunder (such indentures, together with the applicable board
resolutions, supplements or officers’ certificates, the
“Indentures”), (d) warrants for the purchase
of Class A Common Shares, Preferred Shares or Debt Securities
(“Warrants”),
and (e) units (“Units”). The Class A Common
Shares, Preferred Shares, Debt Securities, Warrants and Units being
registered pursuant to the Registration Statement, together with
any additional Class A Common Shares, Preferred Shares, Debt
Securities, Warrants and Units that may be registered pursuant to
any subsequent registration statement that the Company may
hereafter file with the Commission pursuant to Rule 462(b) under
the 1933 Act in connection with the offering by the Company
contemplated by the Registration Statement, are referred to herein
collectively as the “Securities.”
This
opinion is being furnished in connection with the requirements of
Item 601(b)(5) of Regulation S-K under the 1933 Act, and no opinion
is expressed herein as to any matter pertaining to the contents of
the Registration Statement or related applicable Prospectus, other
than as expressly stated herein with respect to the issue of the
Securities.
As such
counsel, we have examined such matters of fact and questions of law
as we have deemed necessary for purposes of rendering the opinions
set forth below. With your consent, we have relied upon
certificates and other assurances of officers of the Company and
others as to factual matters without having independently verified
such factual matters. With your consent, we have assumed that (1)
each of the Debt Securities, Warrants, Units, Indentures, warrant
agreements and unit agreements governing such Securities
(collectively pertaining to such Securities, the
“Applicable
Documents”) will be governed by the internal laws of
the State of New York, (2) each of the Applicable Documents has
been or will be duly authorized, executed and delivered by the
parties thereto, (3) each of the Applicable Documents constitutes
or will constitute a legally valid and binding obligation of the
parties thereto other than the Company, enforceable against each of
them in accordance with its terms, and (4) the status of each of
the Applicable Documents as a legally valid and binding obligation
of the parties will not be affected by any (A) breach of, or
default under, any agreement or instrument, (B) violation of any
statute, rule, regulation, or court or governmental order, or (C)
failures to obtain any required consent, approval or authorization
from, or to make any required registration, declaration or filing
with, any governmental authorities. In rendering the opinions set
forth in paragraphs 1 and 2 below, we have assumed the Company will
comply with all applicable notice requirements set forth in the
General Corporation Law of the State of Delaware with respect to
uncertificated shares.
Our
opinions are subject to: (i) the effect of bankruptcy, insolvency,
reorganization, preference, fraudulent transfer, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors; (ii) the effect of general principles of equity,
whether considered in a proceeding in equity or at law (including
the possible unavailability of specific performance or injunctive
relief), concepts of materiality, reasonableness, good faith and
fair dealing, and the discretion of the court before which a
proceeding is brought; and (iii) the invalidity under certain
circumstances under law or court decisions of provisions providing
for the indemnification of or contribution to a party with respect
to a liability where such indemnification or contribution is
contrary to public policy. In addition, w express no opinion as to
(a) any provision for liquidated damages, default interest, late
charges, monetary penalties, make-whole premiums or other economic
remedies to the extent such provisions are deemed to constitute a
penalty, (b) any consent to, or restriction upon, governing law,
jurisdiction, venue, arbitration, remedies, or judicial relief, (c)
any waiver of rights or defenses, (d) any provision requiring the
payment of attorneys’ fees, where such payment is contrary to
law or public policy, (e) any provision permitting, upon
acceleration of any Debt Securities, collection of that portion of
the stated principal amount thereof that might be determined to
constitute unearned interest thereon, (f) the creation, validity,
attachment, perfection or priority of any lien or security
interest, (g) any advance waiver of claims, defenses, rights
granted by law, or notice, opportunity for hearing, evidentiary
requirements, statutes of limitation, trial by jury or at law, or
other procedural rights, (h) any waiver of broadly or vaguely
stated rights, (i) any provision for exclusivity, election or
cumulation of rights or remedies, (j) any provision authorizing or
validating conclusive or discretionary determinations, (k) any
grant of setoff rights, (l) any proxy, power or trust, (m) any
provision prohibiting, restricting, or requiring consent to
assignment or transfer of any right or property, (n) any provision
requiring that a claim with respect to a security denominated in
other than U.S. dollars (or a judgment in respect of such a claim)
be converted into U.S. dollars at a rate of exchange at a
particular date, to the extent applicable law otherwise provides,
and (o) the severability, if invalid, of any provision to the
foregoing effect.
Our
opinions are limited to the General Corporation Law of the State of
Delaware, including the applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting those
laws, and, with respect to the opinions set forth in paragraphs 3,
4 and 5 below, the internal laws of the State of New York. We are
opining only as to the matters expressly set forth herein, and no
opinion should be inferred as to any other matters. This opinion is
based upon currently existing statutes, rules, regulations and
judicial decisions, and we disclaim any obligation to advise you of
any change in any of these sources of law or subsequent legal or
factual developments which might affect any matters or opinions set
forth herein.
1
Based upon and subject to the foregoing, it is our opinion
that, as of the date hereof:
1.
When an issuance of
Class A Common Shares has been duly authorized by all necessary
corporate action of the Company, upon issuance, delivery and
payment therefor in an amount not less than the par value thereof
in the manner contemplated by the applicable Prospectus and by such
corporate action, and in total numbers of Class A Common Shares
that do not exceed the respective total numbers of Class A Common
Shares (a) available under the Company’s Restated Certificate
of Incorporation, as amended, and (b) authorized by the
Company’s board of directors in connection with the offering
contemplated by the applicable Prospectus, such Class A Common
Shares will be validly issued, fully paid and
nonassessable.
2.
When a series of
Preferred Shares has been duly established in accordance with the
terms of the Company’s Restated Certificate of Incorporation,
as amended, and the issuance of Preferred Shares of such series has
been duly authorized by all necessary corporate action of the
Company, upon issuance, delivery and payment therefor in an amount
not less than the par value thereof in the manner contemplated by
the applicable Prospectus and by such corporate action, and in
total numbers of Preferred Shares of such series that do not exceed
the respective total numbers of Preferred Shares of such series (a)
available under the Company’s Restated Certificate of
Incorporation, as amended, and (b) authorized by the
Company’s board of directors in connection with the offering
contemplated by the applicable Prospectus, such Preferred Shares of
such series will be validly issued, fully paid and
nonassessable.
When the applicable
Indenture has been duly authorized, executed and delivered by all
necessary corporate action of the Company and the specific terms of
a particular series of Debt Securities have been duly established
in accordance with the terms of the applicable Indenture and
authorized by all necessary corporate action of the Company, upon
due execution, authentication, issuance and delivery against
payment therefor in accordance with the terms of the applicable
Indenture and in the manner contemplated by the applicable
Prospectus and by such corporate action, such Debt Securities will
be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms.
4.
When the applicable
warrant agreement has been duly authorized, executed and delivered
by all necessary corporate action of the Company and the specific
terms of a particular issuance of Warrants have been duly
established in accordance with the terms of the applicable warrant
agreement and authorized by all necessary corporate action of the
Company, upon due execution, authentication, issuance and delivery
against payment therefor in accordance with the terms of the
applicable warrant agreement and in the manner contemplated by the
applicable Prospectus and by such corporate action (assuming the
securities issuable upon exercise of such Warrants have been duly
authorized and reserved for issuance by all necessary corporate
action), such Warrants will be legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms.
5.
When the applicable
unit agreement has been duly authorized, executed and delivered by
all necessary corporate action of the Company, and when the
specific terms of a particular issuance of Units have been duly
authorized in accordance with the terms of the applicable unit
agreement and authorized by all necessary corporate action of the
Company, upon due execution, authentication, issuance and delivery
against payment therefor in accordance with the terms of the
applicable unit agreement and in the manner contemplated by the
applicable Prospectus and by such corporate action (assuming the
securities issuable upon exercise of such Units have been duly
authorized and reserved for issuance by all necessary corporate
action), such Units will be legally valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms.
We
consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the reference to this firm in the
related Prospectus under the caption “Legal Matters.”
We further consent to the incorporation by reference of this
opinion letter and consent into any registration statement or
post-effective amendment to the Registration Statement filed
pursuant to Rule 462(b) under the 1933 Act with respect to the
Securities. In giving our consent, we do not thereby admit that we
are in the category of persons whose consent is required under
Section 7 of the 1933 Act or the rules and regulations
thereunder.
Yours
truly,
/s/
K&L Gates
LLP
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