As filed with the Securities and Exchange
Commission on July 29, 2015 |
|
Registration No.
333-______ |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
AMERICAN LORAIN CORPORATION
(Exact name of registrant as specified in its charter)
Nevada |
2068 |
87-0430320 |
(State or other jurisdiction of |
(Primary Standard Industrial |
(I.R.S. Employer |
incorporation or organization) |
Classification Code Number) |
Identification Number) |
Beihuan Road
Junan County
Shandong, China 276600
(+86) 539-7317959
(Address, including zip code,
and telephone number, including area code, of registrants principal executive
offices)
Mr. Si Chen
American Lorain Corporation
Beihuan Road
Junan County
Shandong, China 276600
(+86) 539-7317959
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies to:
Thomas Wardell, Esq.
Jeffrey Li, Esq.
Dentons
US, LLP
303 Peachtree Street, NE, Suite 5300
Atlanta, Georgia
30308
(404) 527-4000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this registration
statement as determined by the Registrant.
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 of the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and lit 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 post-effective amendment filed pursuant to
Rule 462(d) 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 upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, please 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, please check the following box. [ ]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer,
accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer [ ] |
Accelerated filer [ ] |
Non-accelerated filer [ ] |
Smaller reporting company |
|
|
|
[X] |
|
|
(Do not check if a smaller |
|
|
|
reporting company) |
|
CALCULATION OF REGISTRATION FEE
Title of each Class of
Security being Registered (1) |
Amount being
Registered (1) |
Proposed
Maximum Offering Price Per
Security (2) |
Proposed
Maximum Aggregate Offering
Price (2) |
Amount of
Registration Fee (3) |
Common Stock Preferred Stock Rights Warrants
Units Total |
|
|
|
|
|
$ |
|
$60,000,000 |
$6,972.00 |
(1) We are registering under this Registration Statement such
indeterminate number of shares of common stock and preferred stock, such
indeterminate number of warrants to purchase common stock and/or preferred
stock, 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 $60,000,000. We may sell any securities we are registering under
this Registration Statement separately or as units with the other securities we
are registering under this Registration Statement. We will determine, from time
to time, the proposed maximum offering price per unit in connection with our
issuance of the securities we are registering under this Registration Statement.
The securities we are registering under this Registration Statement also include
such indeterminate number of shares of common stock and preferred stock as we
may issue upon conversion of or exchange for preferred stock that provide for
conversion or exchange, upon exercise of warrants or pursuant to the
anti-dilution provisions of any of such securities. In addition, pursuant to
Rule 416 under the Securities Act of 1933 (the Securities Act), the shares we
are registering under this Registration Statement include such indeterminate
number of shares of common stock and preferred stock as may be issuable with
respect to the shares we are registering as a result of stock splits, stock
dividends or similar transactions.
(2) We will determine the proposed maximum aggregate offering
price per class of security from time to time in connection with our issuance of
the securities we are registering under this Registration Statement and we are
not specifying such price as to each class of security pursuant to General
Instruction II.D. of Form S-3 under the Securities Act.
(3) Calculated pursuant to Rule 457(o) under the Securities
Act.
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 or until this Registration Statement shall
become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may
be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated July 29, 2015
PRELIMINARY PROSPECTUS
AMERICAN LORAIN CORPORATION
$60,000,000
Common Stock
Preferred Stock
Rights
Warrants
Units
We may offer from time to time shares of our common stock, par
value $0.001 (Common Stock), preferred stock, warrants and units that include
any of these securities. The aggregate initial offering price of the securities
sold under this prospectus will not exceed $60,000,000. We will offer the
securities in amounts, at prices and on terms to be determined at the time of
the offering.
Our common stock is traded on the NYSE MKT under the symbol
ALN. The aggregate market value of the outstanding shares of our common stock
held by non-affiliates is $33,704,247.5 based on 38,259,490 shares of common stock
outstanding, of which 19,259,570 are held by non-affiliates, and a closing sale
price on NYSE MKT of $1.75 on July 24, 2015. As of the date hereof, we have not
offered any securities pursuant to the registration statement of which this
prospectus forms a part, or any similar registration statement, during the prior
12 calendar month period that ends on the date hereof.
Each time we sell securities hereunder, we will attach a
supplement to this prospectus that contains specific information about the terms
of the offering, including the price at which we are offering the securities to
the public. The prospectus supplement may also add, update or change information
contained or incorporated in this prospectus. You should read this prospectus
and the applicable prospectus supplement, as well as the documents incorporated
by reference or deemed to be incorporated by reference into this prospectus or
any such prospectus supplement, carefully before you invest in our securities.
These securities may be sold directly by us, through dealers or
agents designated from time to time, to or through underwriters or through a
combination of these methods. See Plan of Distribution in this prospectus. We
may also describe the plan of distribution for any particular offering of our
securities in a prospectus supplement. If any agents, underwriters or dealers
are involved in the sale of any securities in respect of which this prospectus
is being delivered, we will disclose their names and the nature of our
arrangements with them in a prospectus supplement. The net proceeds we expect to
receive from any such sale will also be included in a prospectus supplement.
Investing in our securities involves various risks. See
Risk Factors on page 3 of the prospectus for more information on these risks.
Additional risks will be described in the related prospectus supplement related
to a potential offer under the heading Risk Factors. You should review that
section of the related prospectus supplement for a discussion of matters that
investors in such securities should consider. Further, see Risk Factors in our
Annual Report on Form 10-K for the year ended December 31, 2014, which has been
filed with the Securities and Exchange Commission and is incorporated by
reference into this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities, or passed
upon the completeness or the adequacy or accuracy of this prospectus or any
accompanying prospectus supplement. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is July 29, 2015
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS |
1 |
|
|
ABOUT AMERICAN LORAIN |
2 |
|
|
RISK FACTORS |
3 |
|
|
NOTE REGARDING FORWARD-LOOKING
STATEMENTS |
4 |
|
|
USE OF PROCEEDS |
5 |
|
|
DESCRIPTION OF CAPITAL STOCK |
5 |
|
|
DESCRIPTION OF RIGHTS |
8 |
|
|
DESCRIPTION OF WARRANTS |
9 |
|
|
DESCRIPTION OF UNITS |
9 |
|
|
PLAN OF DISTRIBUTION |
10 |
|
|
LEGAL MATTERS |
12 |
|
|
EXPERTS |
12 |
|
|
WHERE YOU CAN FIND MORE INFORMATION |
12 |
|
|
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE |
13 |
|
|
PART II INFORMATION NOT REQUIRED IN
PROSPECTUS |
14 |
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC, using a shelf
registration process. Under this shelf registration process, we may offer from
time to time up to $60,000,000 in the aggregate of our common stock, preferred
stock, rights, warrants, or units. We will refer to our common stock, preferred
stock, rights, warrants, and units collectively as securities throughout this
prospectus.
This prospectus provides certain general information about the
securities that we may offer hereunder. Each time we sell securities, we will
provide a prospectus supplement that will contain specific information about the
terms of the offering and the offered securities. The prospectus supplement will
contain the specific information about the terms of the offering. In each
prospectus supplement, we will include the following information:
|
|
the number and type of securities that we
propose to sell; |
|
|
the public offering price; |
|
|
the names of any underwriters, agents or
dealers through or to which the securities will be sold; |
|
|
any compensation of those underwriters, agents
or dealers; |
|
|
any additional risk factors applicable to the
securities or our business and operations; and |
|
|
any other material information about the
offering and sale of the securities. |
In addition, the prospectus supplement may also add, update or
change the information contained or incorporated in this prospectus. The
prospectus supplement will supersede this prospectus to the extent it contains
information that is different from, or that conflicts with, the information
contained or incorporated in this prospectus. You should read and consider all
information contained in this prospectus and any accompanying prospectus
supplement in making your investment decision. You should also read and
consider the information contained in the documents identified under the heading
Incorporation of Certain Documents by Reference and Where You Can Find More
Information in this prospectus.
You should rely only on the information contained or
incorporated by reference in this prospectus or a prospectus supplement. We have
not authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. This prospectus is not an offer to sell securities, and it is not
soliciting an offer to buy securities, in any jurisdiction in which the offer or
sale is not permitted. You should assume that the information contained in this
prospectus or any accompanying prospectus supplement, as well as information we
have previously filed with the SEC and incorporated herein by reference, is
accurate only as of the date set forth on the front of such documents. Our
business, financial condition, results of operations and prospects may have
changed since those dates.
In this prospectus, unless indicated otherwise,
|
|
We, us and our refer to the combined
business of ALN, and except where the context requires otherwise, our
wholly-owned and majority-owned direct and indirect operating
subsidiaries. |
|
|
ALN refers to American Lorain Corporation, a
Nevada corporation |
1
|
|
Athena refers to Athena*, a limited liability
company organized under the laws of France that is majority-owned by Junan
Hongrun. |
|
|
ILH refers to International Lorain Holding,
Inc., a Cayman Islands company that is wholly-owned by ALC. |
|
|
Junan Hongrun refers to Junan Hongrun
Foodstuff Co., Ltd., a subsidiary of ILH. |
|
|
Luotian Lorain refers to Luotian Green
Foodstuff Co., Ltd., a subsidiary of ILH. |
|
|
Beijing Lorain refers to Beijing Green
Foodstuff Co., Ltd., a subsidiary of ILH. |
|
|
Shandong Lorain refers to Shandong Green
Foodstuff Co., Ltd., a subsidiary of ILH. |
|
|
Dongguan Lorain refers to Dongguan Green
Foodstuff Co., Ltd., a subsidiary of ILH. |
|
|
Shandong Greenpia refers to Shandong Greenpia
Foodstuff Co., Ltd., a subsidiary of ILH. |
* Athena is a holding company which holds all of the
capital and the voting shares of Conserverie Minerve, a company organized under
French law. Conserverie Minerve specializes in the processing and sale of
chestnut and prepared foods products in Europe. Conserverie Minerve operates its
businesses through the following, direct and indirect, wholly owned
subsidiaries:
|
|
Sojafrais, a company organized under French
law; |
|
|
SCI SIAM, a real estate company organized under
French law; |
|
|
SCI GIU LONG, a real estate company organized
under French law; and |
|
|
CACOVIN, a company organized under Portuguese
law |
ABOUT AMERICAN LORAIN
ALN is a Nevada corporation that was incorporated on February
4, 1986 and was formerly known as Millennium Quest, Inc. Effective November
12, 2009, ALN reincorporated in Nevada from Delaware.
We conduct our production activities in China and, through our
majority-owned subsidiary, in France and Portugal. Our products are sold in
Chinese domestic markets as well as exported to foreign countries and regions
such as Japan, South Korea and Europe. We derive most of our revenues from sales
in China, France, Japan and South Korea. In 2015, our primary strategy is to
continue building our brand recognition in China through consistent marketing
efforts towards supermarkets, wholesalers, and significant customers, enhancing
the cooperation with other manufacturers and factories and enhancing the
turnover for our existing chestnut, convenience and frozen food products. In
addition, we are working to expand our marketing efforts in Asia, Europe, and
the Middle East. We currently have limited sales and marketing activity in the
United States, although our long-term plan is to significantly expand our
activities there. We also plan to launch a mass-consumed food product series
whose market is highly fragmented in China.
ALN owns 100% of ILH. ILH wholly owns two Chinese operating
subsidiaries, Luotian Lorain and Junan Hongrun, directly. Junan Hongrun, in
turn, owns 100% and 51% of Dongguan Lorain and Athena respectively. Athena is a holding company which
holds all of the capital and the voting shares of Conserverie Minerve, a company
organized under French law. Conserverie Minerve specializes in the processing
and sale of chestnut and prepared foods products in Europe. Conserverie Minerve
operates its businesses through its direct and indirect, wholly owned
subsidiaries, Sojafrais, SCI SIAM, SCI GIU LONG and CACOVIN. In addition,
together with Junan Hongrun, ILH wholly owns Beijing Lorain, Shandong Greenpia,
and owns approximately 80% of Shandong Lorain (Shandong Economic Development
Investment Co. Ltd. owns approximately 20%). We sometimes refer to our six
Chinese operating subsidiaries and the Athena Group throughout this prospectus
as the Lorain Group Companies.
2
We are an integrated food manufacturing company with
headquarters in Shandong Province, China. We develop, manufacture and sell the
following types of food products:
|
|
chestnut products; |
|
|
convenience foods (including ready-to-cook
meals, ready-to-eat meals and meals ready- to-eat); and |
|
|
frozen food products. |
The address of our principal executive office in China is
Beihuan Road, Junan County, Shandong, China 276600, and our telephone number is
(+86) 539-7317959. We maintain websites at http://www.loraingroup.com and
http://americanlorain.com, which contain information about our company.
However, no information contained on our websites shall be deemed to be a part
of this prospectus.
RISK FACTORS
An investment in our securities involves a high degree of risk.
Before making any investment decision, you should carefully consider the risk
factors set forth below, under the caption Risk Factors in any applicable
prospectus supplement and under the caption Risk Factors in our most recent
annual report on Form 10-K and our subsequent quarterly reports on Form 10-Q,
which are incorporated by reference in this prospectus, as well as in any
applicable prospectus supplement, as updated by our subsequent filings under the
Securities Exchange Act of 1934, as amended (the Exchange Act).
These risks could materially affect our business, results of
operation or financial condition and affect the value of our securities.
Additional risks and uncertainties that are not yet identified may also
materially harm our business, operating results and financial condition and
could result in a complete loss of your investment. You could lose all or part
of your investment. For more information, see Where You Can Find More
Information.
Risks Related to Our Securities and the Offering
Future sales or other dilution of our equity could
depress the market price of our Common Stock.
Sales of our Common Stock, preferred stock, warrants, units, or
any combination of the foregoing in the public market, or the perception that
such sales could occur, could negatively impact the price of our Common Stock. If one or more of our
shareholders were to sell large portions of their holdings in a relatively short
time, for liquidity or other reasons, the prevailing market price of our Common
Stock could be negatively affected.
3
In addition, the issuance of additional shares of our Common
Stock, securities convertible into or exercisable for our Common Stock, other
equity-linked securities, including preferred stock or warrants, or any
combination of the securities pursuant to this prospectus will dilute the
ownership interest of our common shareholders and could depress the market price
of our Common Stock and impair our ability to raise capital through the sale of
additional equity securities.
We may need to seek additional capital. If this additional
financing is obtained through the issuance of equity securities or options or
warrants to acquire equity securities, our existing shareholders could
experience significant dilution upon the issuance, conversion or exercise of
such securities.
Our management will have broad discretion over the use of
the proceeds we receive from the sale our securities pursuant to this prospectus
and might not apply the proceeds in ways that increase the value of your
investment.
Our management will have broad discretion to use the net
proceeds from any offerings under this prospectus, and you will be relying on
the judgment of our management regarding the application of these proceeds.
Except as described in any prospectus supplement or in any related free writing
prospectus that we may authorize to be provided to you, the net proceeds
received by us from our sale of the securities described in this prospectus will
be added to our general funds and will be used for general corporate purposes.
Our management might not apply the net proceeds from offerings of our securities
in ways that increase the value of your investment and might not be able to
yield a significant return, if any, on any investment of such net proceeds. You
may not have the opportunity to influence our decisions on how to use such
proceeds.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements contained or incorporated by reference
in this prospectus may be forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the Securities Act),
and Section 21E of the Exchange Act and may involve material risks, assumptions
and uncertainties. Forward-looking statements typically are identified by the
use of terms such as may, will, should, believe, might, expect,
anticipate, intend, plan, estimate and similar words, although some
forward-looking statements are expressed differently.
Although we believe that the expectations reflected in such
forward-looking statements are reasonable, these statements are not guarantees
of future performance and involve certain risks and uncertainties that are
difficult to predict and which may cause actual outcomes and results to differ
materially from what is expressed or forecasted in such forward-looking
statements. These forward-looking statements speak only as of the date on which
they are made and except as required by law, we undertake no obligation to
publicly release the results of any revision or update of these forward-looking
statements, whether as a result of new information, future events or otherwise. If we do update or correct one or more
forward-looking statements, you should not conclude that we will make additional
updates or corrections with respect thereto or with respect to other
forward-looking statements. A detailed discussion of risks and uncertainties
that could cause actual results and events to differ materially from our
forward-looking statements is included in our periodic reports filed with the
SEC and in the Risk Factors section of this prospectus.
4
USE OF PROCEEDS
Except as may be stated in the applicable prospectus
supplement, we intend to use the net proceeds we receive from the sale of the
securities offered by this prospectus for general corporate purposes, which may
include, among other things, repayment of debt, repurchases of common stock,
capital expenditures, the financing of possible acquisitions or business
expansions, increasing our working capital and the financing of ongoing
operating expenses and overhead.
DESCRIPTION OF CAPITAL STOCK
The following is a summary of our capital stock and certain
provisions of our certificate of incorporation and bylaws. This summary does not
purport to be complete and is qualified in its entirety by the provisions of our
Articles of Incorporation, as amended, our Bylaws, and applicable provisions of
the Nevada Revised Statutes (the NRS). See Where You Can Find More
Information elsewhere in this prospectus for information on where you can
obtain copies of our Certificate of Incorporation and Bylaws, which have been
filed with and are publicly available from the SEC.
We are authorized to issue up to 200,000,000 shares of common
stock, par value $0.001 per share. As of July 24, 2015, there were 38,259,490
shares of common stock outstanding.
Description of Common Stock
Each outstanding share of common stock entitles the holder
thereof to one vote per share on all matters. Corporate action to be taken by a
stockholder vote may be authorized by the affirmative vote of a majority of the
votes cast at a meeting of stockholders, or by written consent in lieu of a
meeting, unless otherwise required by law. Stockholders do not have preemptive
rights to purchase shares in any future issuance of our common stock. Upon our
liquidation, dissolution or winding up, and after payment of creditors and
preferred stockholders, if any, our assets will be divided pro-rata on a
share-for-share basis among the holders of the shares of common stock.
The holders of shares of our common stock are entitled to
dividends out of funds legally available when and as declared by our board of
directors. Other than a special dividend paid on April 5, 2007 in connection
with our reverse merger, our board of directors has never declared a dividend
and does not anticipate declaring a dividend in the foreseeable future. Should
we decide in the future to pay dividends, as a holding company, our ability to
do so depends upon the receipt of dividends or other payments from our operating
subsidiaries. In addition, our operating subsidiaries, from time to time, may be
subject to restrictions on their ability to make distributions to us, including
as a result of restrictive covenants in loan agreements, restrictions on the conversion of local currency into U.S. dollars or other
hard currency and other regulatory restrictions.
5
All of the issued and outstanding shares of our common stock
are duly authorized, validly issued, fully paid and non-assessable. To the
extent that additional shares of our common stock are issued, the relative
interests of existing stockholders will be diluted.
Anti-Takeover Effects of Certain Provisions of Nevada Law
As a Nevada corporation, we are also subject to certain
provisions of the NRS that have anti-takeover effects and may inhibit a
non-negotiated merger or other business combination. These provisions are
intended to encourage any person interested in acquiring us to negotiate with,
and to obtain the approval of, our board of directors in connection with such a
transaction. However, certain of these provisions may discourage a future
acquisition of us, including an acquisition in which the stockholders might
otherwise receive a premium for their shares. As a result, stockholders who
might desire to participate in such a transaction may not have the opportunity
to do so.
The NRS provides that specified persons who, with or through
their affiliates or associates, own, or affiliates and associates of the subject
corporation at any time within two years own or did own, 10% or more of the
outstanding voting stock of a corporation cannot engage in specified business
combinations with the corporation for a period of two years after the date on
which the person became an interested stockholder, unless: (i) the combination
or transaction by which such person first became an interested stockholder was
approved by the board of directors before they first became an interested
stockholder; or (ii) such combination is approved by: (x) the board of
directors; and (y) at an annual or special meeting of the stockholders (not by
written consent), the affirmative vote of stockholders representing at least 60%
of the outstanding voting power not beneficially owned by such interested
stockholder. The law defines the term business combination to encompass a wide
variety of transactions with or caused by an interested stockholder, including
mergers, asset sales and other transactions in which the interested stockholder
receives or could receive a benefit on other than a pro rata basis with other
stockholders.
The Control Share Acquisition Statute generally applies only to
Nevada corporations which have at least 200 stockholders of record, including at
least 100 stockholders of record who are Nevada residents, and which conduct
business directly or indirectly in Nevada. This statute generally provides that
any person that acquires a controlling interest acquires voting rights in the
control shares, as defined, only as conferred by the disinterested stockholders
of the corporation at a special or annual meeting. A person acquires a
controlling interest whenever a person acquires shares of a subject
corporation that, but for the application of these provisions of the NRS, would
enable that person to exercise (1) one-fifth or more, but less than one-third,
(2) one-third or more, but less than a majority or (3) a majority or more, of
all of the voting power of the corporation in the election of directors. Once an
acquirer crosses one of these thresholds, shares which it acquired in the
transaction taking it over the threshold and within the 90 days immediately
preceding the date when the acquiring person acquired or offered to acquire a
controlling interest become control shares. In the event control shares are
accorded full voting rights and the acquiring person has acquired at least a
majority of all of the voting power, any stockholder of record who has not voted in favor of authorizing
voting rights for the control shares is entitled to demand payment for the fair
value of its shares.
6
These laws may have a chilling effect on certain transactions
if our Articles of Incorporation or Bylaws are not amended to provide that these
provisions do not apply to us or to an acquisition of a controlling interest, or
if our disinterested stockholders do not confer voting rights in the control
shares.
Description of Preferred Stock
We are authorized to issue 5,000,000 shares of preferred stock.
We may issue shares of preferred stock in one or more classes or series within a
class as may be determined by our board of directors, who may establish the
number of shares to be included in each class or series and may fix the
designation, powers, preferences and rights of the shares of each such class or
series and any qualifications, limitations or restrictions thereof. 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 our company, or both. Moreover, under
certain circumstances, the issuance of preferred stock or the existence of the
unissued preferred stock might tend to discourage or render more difficult a
merger or other change in control transaction. There are currently no
outstanding shares of our preferred stock.
Unless provided in a prospectus supplement, 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:
|
|
the number of shares of preferred stock to be
issued and the offering price; |
|
|
the title and stated value of the preferred
stock; |
|
|
dividend rights, including dividend rates,
periods, or payment dates, or methods of calculation of dividends
applicable to the preferred stock; |
|
|
the date from which distributions on the
preferred stock shall accumulate, if applicable; |
|
|
the right to convert the preferred stock into a
different type of security; |
|
|
voting rights attributable to the preferred
stock; |
|
|
rights and preferences upon our liquidation or
winding up of our affairs; |
|
|
terms of redemption; |
|
|
the procedures for any auction and remarketing,
if any, for the preferred stock; |
|
|
the provisions for a sinking fund, if any, for
the preferred stock; |
|
|
any listing of the preferred stock on any
securities exchange; |
|
|
a discussion of federal income tax
considerations applicable to the preferred stock; |
|
|
the relative ranking and preferences of the
preferred stock as to distribution rights; |
|
|
any limitations on the future issuance of any
series of preferred stock ranking senior to, or on a parity with, the
series of preferred stock being offered; and |
|
|
any other specific terms, preferences, rights,
limitations or restrictions of the preferred stock.
|
7
Transfer Agent and Registrar
Our independent stock transfer agent is Interwest Transfer
Company, Inc. Their mailing address is 1981 East Holladay Blvd., P.O. Box 17136,
Salt Lake City, UT 84117. Their phone number is (801) 272-9294.
DESCRIPTION OF RIGHTS
General
We may issue rights to purchase any of our securities or any
combination thereof. Rights may be issued independently or together with any
other offered security and may or may not be transferable by the person
purchasing or receiving the rights. In connection with any rights offering to
our stockholders, we may enter into a standby underwriting arrangement with one
or more underwriters pursuant to which such underwriters will purchase any
offered securities remaining unsubscribed for after such rights offering. We may
also appoint a rights agent that may act solely as our agent in connection with
the rights that are sold. Any such agent will not assume any obligation or
relationship of agency or trust with any of the holders of the rights. In
connection with a rights offering to our stockholders, we will distribute
certificates evidencing the rights to our stockholders on the record date that
we set for receiving rights in such offering.
If rights are offered by us, the prospectus supplement will
describe the terms of the rights, including the following, if applicable to the
particular offering:
|
|
the title of such rights; |
|
|
the securities for which such rights are
exercisable; |
|
|
the exercise price for such rights; |
|
|
the aggregate number of rights issued and the
aggregate number of shares of capital stock purchasable upon exercise of
such rights; |
|
|
the extent to which such rights are
transferable; |
|
|
a discussion of the material income tax
considerations applicable to the issuance or exercise of such rights;
|
|
|
the date on which the right to exercise such
rights shall commence, and the date on which such rights shall expire;
|
|
|
the extent to which such rights include an
over-subscription privilege with respect to unsubscribed securities;
|
|
|
if applicable, the material terms of any
standby underwriting or other purchase arrangement, or any agency
agreement, that we may enter into in connection with the rights offering;
and |
|
|
any other terms of such rights, including
terms, procedures and limitations relating to the exchange and exercise of
such rights. |
Exercise of Rights
Each right will entitle the holder of the right to purchase for
cash such securities or any combination thereof at such exercise price as shall
in each case be set forth in, or be determinable as set forth in, the prospectus
supplement relating to the rights offered thereby. Rights may be exercised at
any time up to the close of business on the expiration date for such rights set
forth in the prospectus supplement. After the close of business on the
expiration date, all unexercised rights will become void.
8
Rights may be exercised as set forth in the prospectus
supplement relating to the rights offered thereby. Upon receipt of payment and
the rights certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in the prospectus
supplement, we will forward, as soon as practicable, the securities purchasable
upon such exercise. We may determine to offer any unsubscribed offered
securities directly to persons other than stockholders, to or through agents,
underwriters or dealers or through a combination of such methods, including
pursuant to standby underwriting arrangements, as set forth in the applicable
prospectus supplement.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase any of our securities. We may
issue warrants independently or together with any other securities offered by
any prospectus supplement and the warrants may be attached to, or separate from,
those securities. Any series of warrants may be issued under a separate warrant
agreement, which may be entered into between us and a warrant agent specified in
a prospectus supplement. Any such warrant agent will act solely as our agent in
connection with the warrants of such series and will not assume any obligation
or relationship of agency or trust with any of the holders of the warrants. We
will set forth further terms of the warrants and any applicable warrant
agreements in the applicable prospectus supplement relating to the issuance of
any warrants, including, where applicable, the following:
|
|
the title of the warrants; |
|
|
the aggregate number of the warrants; |
|
|
the number and type of securities purchasable
upon exercise of the warrants; |
|
|
the designation and terms of the securities, if
any, with which the warrants are issued and the number of the warrants
issued with each such offered security; |
|
|
the date, if any, on and after which the
warrants and the related securities will be separately transferable;
|
|
|
the price at which, and form of consideration
for which, each security purchasable upon exercise of the warrants may be
purchased; |
|
|
the date on which the right to exercise the
warrants will commence and the date on which the right will expire; |
|
|
the minimum or maximum number of warrants which
may be exercised at any one time; |
|
|
any circumstances that will cause the warrants
to be deemed to be automatically exercised; and |
|
|
any other material terms of the warrants.
|
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, with the rights and
obligations of a holder, of each security included in such unit. The unit
agreement under which a unit is issued may provide that the securities included
in such unit may not be held or transferred separately at any time or at any
time before a specified date or event.
9
If units are offered by us, the prospectus supplement will
describe the terms of the units, including the following, if applicable to the
particular offering:
|
|
the designation and terms of the units and of
the securities comprising the units, including whether and under what
circumstances such securities may be held or transferred separately;
|
|
|
any unit agreement under which such units will
be issued; and |
|
|
any provisions for the issuance, payment,
settlement, transfer or exchange of the units or of the securities
comprising such units. |
PLAN OF DISTRIBUTION
SEC rules limit the usage of the registration statement of
which this prospectus forms a part. We may sell securities pursuant to the
registration statement of which this prospectus forms a part, provided that
(unless at the time of sale the aggregate worldwide market value of our common
equity held by non-affiliates is $75 million or more), the aggregate market
value of securities sold by us or on our behalf under the registration
statement, and all other registration statements on Form S-3, during the period
of 12 calendar months immediately prior to such sale is no more than one-third
of the worldwide aggregate market value of our common equity held by
non-affiliates. The aggregate market value of the outstanding shares of our
common stock held by non-affiliates is $33,704,247.5 based on 38,259,490 shares of
common stock outstanding, of which 19,259,570 are held by non-affiliates, and a
closing sale price on NYSE MKT of $ 1.75 on July 24, 2015. As of the date
hereof, we have not offered any securities pursuant to the registration
statement of which this prospectus forms a part or any similar registration
statement during the prior 12 calendar month period that ends on the date
hereof.
We may sell the securities being offered pursuant to this
prospectus to or through underwriters, through dealers, or agents, directly to
one or more institutional investors or through a combination of these methods.
We will identify in a prospectus supplement any underwriter, dealer or agent
involved in the offer and sale of the securities, and any applicable
commissions, discounts and other terms constituting compensation to such
underwriters, dealers or agents.
We may distribute the securities from time to time in one or
more transactions at:
|
|
a fixed price or prices, which may be changed;
|
|
|
market prices prevailing at the time of sale;
|
|
|
prices related to such prevailing market
prices; or |
|
|
negotiated prices. |
Only underwriters named in the prospectus supplement are
underwriters of the securities offered under a prospectus supplement.
If underwriters are used in the sale of our securities, such
securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Unless stated otherwise in a prospectus supplement, the
obligation of any underwriters to purchase our securities will be subject to
certain conditions and the underwriters will be obligated to purchase all of the
applicable securities if any are purchased. If a dealer is used in a sale, we
may sell our securities to the dealer as principal. The dealer may then resell
the securities to the public at varying prices to be determined by the dealer at
the time of resale. In effecting sales, dealers engaged by us may arrange for
other dealers to participate in the resales.
10
We or our agents may solicit offers to purchase securities from
time to time. Unless stated otherwise in a prospectus supplement, any agent will
be acting on a best efforts basis for the period of its appointment. In
addition, we may enter into derivative, sale or forward sale transactions with
third parties, or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. If indicated in a prospectus
supplement, these third parties may, pursuant to this prospectus and the
prospectus supplement, sell securities covered by this prospectus. A third party
may use securities borrowed from us or others to settle such sales and may use
securities received from us or others to close out any related short positions.
We may also loan or pledge securities covered by this prospectus to third
parties who may sell the loaned securities or, in the event of default in the
case of a pledge, sell the pledged securities pursuant to this prospectus. The
third party in such transactions will be an underwriter and will be identified
in a prospectus supplement or in a post-effective amendment.
In connection with the sale of our securities, underwriters or
agents may receive compensation in the form of discounts, concessions or
commissions. Underwriters may sell securities to or through dealers, and such
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 agents. Underwriters, dealers and agents that participate in the
distribution of our securities may be deemed to be underwriters as that term
is defined in the Securities Act of 1933, or the Securities Act, and any
discounts or commissions received by them from us and any profits on the resale
of the shares by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Compensation as to a particular underwriter, dealer or
agent may be in excess of customary commissions and will be in amounts to be
negotiated in connection with any transaction involving our securities. We will
identify any such underwriter or agent, and we will describe any such
compensation paid, in the related prospectus supplement. Maximum compensation to
any underwriters, dealers or agents will not exceed any applicable FINRA
limitations.
Underwriters, dealers and agents may be entitled, under
agreements with us, to indemnification against and contribution toward, certain
civil liabilities, including liabilities under the Securities Act.
If stated in a prospectus supplement, we will authorize agents
and underwriters to solicit offers by certain specified institutions or other
persons to purchase our securities at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specific date in the future. Institutions with whom
such contracts may be made include commercial savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions, but shall in all cases be subject to our
approval. Such contracts will be subject only to those conditions set forth in
the prospectus supplement, and the prospectus supplement will set forth the
commission payable for solicitation of such contracts. The obligations of any
purchase under any such contract will be subject to the condition that the purchase of the securities
shall not be prohibited at the time of delivery under the laws of the
jurisdiction to which the purchaser is subject. The underwriters and other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
11
If underwriters or dealers are used in the sale Commission
rules may limit the ability of any such underwriters and selling group members
to bid for and purchase the securities until the distribution of our securities
is completed. As an exception to these rules, representatives of any
underwriters are permitted to engage in certain transactions that stabilize the
price of the securities. Such transactions may consist of bids or purchases for
the purpose of pegging, fixing or maintaining the price of the securities. If
the underwriters create a short position in the securities in connection with
the offering (in other words, if they sell more shares than are set forth on the
cover page of the prospectus supplement), the representatives of the
underwriters may reduce that short position by purchasing securities in the open
market. The representatives of the underwriters also may elect to reduce any
short position by exercising all or part of any over-allotment option we may
grant to the underwriters, as described in the prospectus supplement. In
addition, the representatives of the underwriters may impose a penalty bid on
certain underwriters and selling group members. This means that if the
representatives purchase securities in the open market to reduce the
underwriters short position or to stabilize the price of our securities, they
may reclaim the amount of the selling concession from the underwriters and
selling group members who sold those securities as part of the offering. In
general, purchases of a security for the purpose of stabilizing or reducing a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases. The imposition of a penalty bid might also
have the effect of causing the price of the securities to be higher than it
would otherwise be. If commenced, the representatives of the underwriters may
discontinue any of the transactions at any time. These transactions may be
effected on any exchange on which our securities are traded, in the
over-the-counter market, or otherwise.
Certain of the underwriters or agents and their associates may
engage in transactions with, and perform services for, us or our affiliates in
the ordinary course of their respective businesses.
LEGAL MATTERS
The validity of the securities offered in this prospectus will
be passed upon for us by Dentons US, LLP.
EXPERTS
The consolidated financial statements for the years ended
December 31, 2013 and 2014 incorporated in this prospectus by reference from the
Companys Annual Report on Form 10-K have been audited by WWC, P.C., an
independent certified public accounting firm, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-3
that we filed with the SEC registering the securities that may be offered and
sold hereunder. The registration statement, including exhibits thereto, contains additional relevant
information about us and these securities that, as permitted by the rules and
regulations of the SEC, we have not included in this prospectus. A copy of the
Registration Statement can be obtained at the address set forth below or at the
SECs website as noted below. You should read the registration statement,
including any applicable prospectus supplement, for further information about us
and these securities.
12
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are available to the public
over the Internet at the SECs website at http:/www.sec.gov. You may also read
and copy any document we file at the SECs Public Reference Room at 100 F
Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of the Public Reference Room.
Because our Common Stock is listed on the New York Stock
Exchange, you may also inspect reports, proxy statements and other information
at the offices of the New York Stock Exchange.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by us with the SEC (under
Commission File Number 000-50883) are incorporated by reference in this
prospectus:
|
|
our Annual Report on Form 10-K for the fiscal
year ended December 31, 2014, filed on April 15, 2015; |
|
|
Quarterly Reports on Form 10-Q for the three
month periods ended March 31, 2014, June 30, 2014, September 30, 2014 and
March 31, 2015; |
|
|
Our definitive proxy statement on Schedule 14A,
filed on April 30, 2015; and |
|
|
Current Reports on Form 8-K, filed on May 20,
2014, June 11, 2014, August 8, 2014, November 3, 2014 and July 6, 2015.
|
We also incorporate by reference all documents that we file
with the SEC on or after the effective time of this prospectus pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the sale of
all the securities registered hereunder or the termination of the registration
statement. Nothing in this prospectus shall be deemed to incorporate information
furnished but not filed with the SEC.
Any statements contained in a previously filed document
incorporated by reference into this prospectus is deemed to be modified or
superseded for purpose of this prospectus to the extent that a statement
contained in this prospectus, or in a subsequently filed document incorporated
by reference herein, modifies or supersedes such statement.
You may request a copy of these filings, at no cost to you, by
writing or calling us at the following address or telephone: Mr. Johnny Zhou,
American Lorain Corporation, Beihuan Road, Junan County, Shandong, China 276600
T: (+86) 539-7317959.
Upon request, we will provide to each person, including any
beneficial owner, to whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the prospectus but not
delivered with the prospectus. You may request a copy of these filings at no cost by writing us at the following
address: Mr. Johnny Zhou, American Lorain Corporation, Beihuan Road, Junan
County, Shandong, China 276600.
13
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
The following table sets forth an estimate of the fees and
expenses relating to the registration of our securities of which shall be borne
by us. Such fees and expenses are estimated to be as follows:
SEC Registration Fee
|
$ |
6,972.00 |
|
Legal fees and
expenses |
|
|
|
Accounting fees and expenses
|
|
|
|
Printing and miscellaneous
expenses |
|
|
|
Total |
$ |
6,972.00
|
|
Item 15. Indemnification of Officers and Directors
Subsection 1 of Section 78.7502 of the NRS, empowers a
corporation to indemnify any person who was or is a party, or is threatened to
be made a party, to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with the action, suit or proceeding if that person acted in good
faith and in a manner that he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, does not create a presumption that the person did not act in good
faith and in a manner that he or she reasonably believed to be in or not opposed
to the best interests of the corporation, or that, with respect to any criminal
action or proceeding, that he or she had reasonable cause to believe that his or
her conduct was unlawful.
Subsection 2 of Section 78.7502 of the NRS empowers a
corporation to indemnify any person who was or is a party, or is threatened to
be made a party, to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys fees actually and reasonably incurred by such person in connection with the defense or
settlement of the action or suit if he or she acted in good faith and in a
manner that he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation. Indemnification may not be made for any claim,
issue or matter as to which such person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the corporation or for amounts paid in settlement to the corporation, unless
and only to the extent that the court in which the action or suit was brought,
or other court of competent jurisdiction, determines upon application that in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
14
Subsection 3 of Section 78.7502 of the NRS further provides
that to the extent a director, officer, employee or agent of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections 1 and 2 of Section 78.7502, or in defense
of any claim, issue or matter therein, a corporation shall indemnify him or her
against expenses, including attorneys fees, actually and reasonably incurred by
such person in connection with the defense.
The Articles of Incorporation of the registrant provide for
indemnification of to the fullest extent permitted under the NRS. Such Articles
provide that the expenses of directors and officers of the registrant incurred
in defending any action, suit or proceeding, whether civil, criminal,
administrative or investigative, must be paid by the registrant as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of such director or
officer to repay all amounts so advanced if it is ultimately determined by a
court of competent jurisdiction that the director or officer is not entitled to
be indemnified by the registrant.
Item 16. Exhibits
See the Exhibit Index attached to this registration statement
and 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, as amended;
(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 any 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective
registration statement; and
15
(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) 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 Securities and Exchange Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934, as amended, 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, as amended, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act of 1933, as amended, to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the
registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933, as amended, 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.
16
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933, as amended, 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.
(6) The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(ii) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the registrants annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934, as amended (and, where
applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended), that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the indemnification provisions described
herein, 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.
17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Shandong,
on the 29 day of July, 2015.
|
AMERICAN LORAIN CORPORATION |
|
|
By: |
/s/ Si Chen |
|
Si Chen |
|
Chairman, Director 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. Each person whose signature appears below
constitutes and appoints Si Chen and Johnny Xiang Zhou, and each of them
individually, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Signature |
Title |
Date |
|
|
|
/s/ Si Chen |
Chairman, Director and Chief |
July 29, 2015 |
|
Executive Officer |
|
Mr. Si Chen |
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Xiang Zhou |
Interim Chief Financial Officer |
July 29, 2015 |
Mr. Xiang Zhou |
(Principal Financial and Principal |
|
|
Accounting Officer) |
|
|
|
|
|
|
|
/s/ Yundong Lu |
Chief Operating Officer and Director |
July 29, 2015 |
Mr. Yundong Lu |
|
|
|
|
|
/s/ Delkai Yin |
Director |
July 29, 2015 |
Mr. Delkai Yin |
|
|
|
|
|
/s/ Maoquan Wei |
Director |
July 29, 2015 |
Mr. Maoquan Wei |
|
|
|
|
|
/s/ Jianxiao Wu |
Director |
July 29, 2015 |
Jianxiao Wu |
|
|
18
EXHIBIT INDEX
Exhibit |
|
|
Number
|
|
Description of Document |
|
|
|
1.1 |
|
Form of Underwriting Agreement.
* |
|
|
|
3.1 |
|
Articles of
Incorporation of the Registrant, as filed with the Nevada Secretary of State
on June 15, 2009, incorporated by reference to Exhibit 3.1 to the
registrant's registration statement on Form S-3 filed on January 29, 2010. |
|
|
|
3.2 |
|
Bylaws of the
registrant, incorporated by reference to Exhibit 3.2 to the registrants
registration statement on Form S-3 filed on January 29, 2010. |
|
|
|
4.1 |
|
Specimen Common Stock
Certificate. incorporated by reference to registrants Registration
Statement on Form S-3 filed with the Securities and Exchange Commission on
January 29, 2010. |
|
|
|
4.2 |
|
Certificate of Designation for
Preferred Stock. * |
|
|
|
4.3 |
|
Specimen Preferred Stock
Certificate. * |
|
|
|
4.4 |
|
Form of Warrant Agreement and
Warrant Certificate. * |
|
|
|
4.5 |
|
Form of Unit Agreement and Unit
Certificate. * |
|
|
|
4.6 |
|
Form of Purchase Right. *
|
|
|
|
5.1 |
|
Opinion of Dentons US, LLP +
|
|
|
|
23.1 |
|
Consent of Independent
Registered Public Accounting Firm+ |
|
|
|
23.2 |
|
Consent of Dentons US, LLP
(included in legal opinion filed as Exhibit 5.1). |
|
|
|
24.1 |
|
Power of Attorney (included in
the signature page). |
+ |
Filed herewith. |
|
|
* |
To the extent applicable, to be filed as an
exhibit to a post-effective amendment or to a document filed under the
Securities Exchange Act and incorporated by reference herein.
|
19
![](exhibit5-1x1x1.jpg) |
Thomas
Wardell |
Thomas.wardell@dentons.com
D
404.527.4990 |
Salans FMC SNR
Denton
McKenna Long |
|
|
Dentons US LLP |
dentons.com |
|
303 Peachtree Street, NE Suite
5300, |
|
|
Atlanta, GA 30308 |
|
|
United States |
|
July 29, 2015
Board of Directors
American Lorain Corporation
Beihuan
Road
Junan County
Shandong, China 276600
Re: Primary Registration Statement
on Form S-3
Gentlemen:
We have acted as counsel to American Lorain Corporation, a
Nevada corporation (the Company), in connection with the filing by the
Company of a Registration Statement on Form S-3 (including the prospectus which
is a part thereof, the Registration Statement), with the Securities and
Exchange Commission (the Commission) for the registration under the
Securities Act of 1933 as amended (the Act) of an indeterminate amount
and number of the following securities of the Company, which may be offered and
sold from time to time on a delayed or continuous basis pursuant to Rule 415
under the Act for an aggregate initial offering price of up to $60,000,000: (i)
shares of common stock of the Company, par value $0.001 per share (the
Common Stock); (ii) shares of preferred stock of the Company, which may
be authorized (the Preferred Stock); (iii) warrants to purchase shares of the
Common Stock, the Preferred Stock, or any combination of such securities (the
Warrants); (iv) rights to purchase shares of Common or Preferred Stock
(Rights); and (v) units consisting of Common Stock, Preferred Stock, and/or
Warrants or a combination thereof (the Units). The Common Stock, Preferred
Stock, Warrants, and Units are referred to herein each as a Security and
collectively as the Securities. This opinion letter is being rendered pursuant
to Item 16 of Form S-3 and Item 601(b)(5) of Regulation S-K.
In connection with this opinion, we have examined such
documents and considered such legal matters deemed by us to be relevant to this
opinion letter and the Registration Statement, including the applicable
statutory provisions and related rules and regulations of Chapter 78 of the
Nevada Revised Statutes and the reported judicial decisions interpreting those
laws, the Articles of Incorporation of the Company, as amended through the date
hereof (the Articles of Incorporation), the Bylaws of the Company (the
Bylaws), certain resolutions of the Board of Directors of the Company relating
to the issuance, sale and registration of the Securities and the Registration
Statement. We also have made such further legal and factual examinations and
investigations as we deemed necessary for purposes of expressing the opinion set
forth herein. With respect to such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as reproduced or certified copies, and the authenticity of the originals of
those latter documents. As to questions of fact material to this opinion, we
have, to the extent deemed appropriate, relied upon, without independent
verification or investigation of the accuracy or completeness thereof, certain
representations of certain officers of the Company.
American Lorain
Page 2
We have assumed that any warrant agreements relating to the
Warrants, any unit agreements relating to the Units, and any other
agreements/offering documents relating to the issuance and sale of the
Securities by the Company will not, in each case, violate or constitute a
default or breach under: (i) any agreement or instrument to which the Company or
its properties is subject; (ii) any law, rule or regulation to which the Company
is subject; (iii) any judicial or regulatory order or decree of any governmental
authority; or (iv) any consent, approval, license, authorization or validation
of, or filing, recording or registration with any governmental authority.
We have further assumed that: (i) the Registration Statement
and any amendments thereto will have become effective under the Act and comply
with all applicable laws at the time the Securities are offered or issued as
contemplated by the Registration Statement; (ii) an appropriate prospectus
supplement, free writing prospectus or term sheet relating to the Securities
offered thereby will be prepared and filed with the Commission in compliance
with the Act and will comply with all applicable laws at the time the Securities
are offered or issued as contemplated by the Registration Statement; (iii) all
Securities will be issued and sold in compliance with the applicable provisions
of the Act and the securities or blue sky laws of various states and in the
manner stated in the Registration Statement and the applicable prospectus
supplement; (iv) a definitive and enforceable purchase, underwriting or similar
agreement with respect to any Securities offered or issued will have been duly
authorized and validly executed and delivered by the Company and the other
parties thereto, and the consideration payable for the Securities sold
thereunder shall have been paid to the Company in accordance with such
underwriting, purchase or similar agreement; (v) at the time of issuance of any
shares of Common Stock (including any such shares issuable upon the conversion
of another Security), the Company has a sufficient number of authorized but
unissued shares of Common Stock under its Articles of Incorporation; and (vi)
any Securities issuable upon conversion, exchange or exercise of any Security
being offered or issued will be duly authorized, created and, if appropriate,
reserved for issuance upon such conversion, exchange or exercise.
Our opinion is limited to applicable statutory provisions of
Chapter 78 of the Nevada Revised Statutes and the reported judicial decisions
interpreting those laws and federal laws of the United States of America to the
extent referred to specifically herein. We are generally familiar with Chapter
78 of the Nevada Revised Statutes as currently in effect and have made such
inquiries and review of matters of fact and law as we determined necessary to
render the opinions contained herein. We assume no obligation to revise or
supplement this opinion letter in the event of future changes in such laws or
the interpretations thereof or such facts. We express no opinion regarding the
Act, or any other federal or state laws or regulations.
Based upon the foregoing, and in reliance thereon, we are of
the opinion that:
1. With
respect to shares of the Common Stock, once (A) the Board of Directors of the
Company or a duly constituted and acting committee thereof (such Board of
Directors or such committee thereof being hereinafter collectively referred to
as the Board) has taken all necessary corporate action in conformity with the
Articles of Incorporation and Bylaws to approve the issuance of the Common
Stock, the terms of the offering thereof and related matters, and (B)
certificates representing shares of the Common Stock have been duly executed,
registered and delivered either (i) in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board against
payment of the consideration therefor (not less than the par value of the Common
Stock) as provided therein; or (ii) upon conversion, exchange or exercise of any
other Security in accordance with the terms of the Security or the instrument
governing the Security providing for the conversion, exchange or exercise as
approved by the Board, for the consideration approved by the Board (not less
than the par value of the Common Stock), such shares of Common Stock will be
validly issued, fully paid and non-assessable.
American Lorain
Page 3
2. With
respect to shares of the Preferred Stock, once (A) the Company has taken all
necessary corporate action in conformity with the Articles of Incorporation, the
Bylaws and Chapter 78 of the Nevada Revised Statutes to amend the Articles of
Incorporation to create and authorize the issuance of Preferred Stock, (B) the
Board and, if necessary, the shareholders of the Company have taken all
necessary corporate action in conformity with the Articles of Incorporation and
Bylaws to approve the issuance and terms of a particular class or series of
shares of Preferred Stock, the terms of the offering thereof and related
matters, including the adoption of a Certificate of Designation for such
Preferred Stock in accordance with applicable law relating to such shares of
Preferred Stock and the filing of such Certificate of Designation with the
Secretary of State of the State of Delaware, if applicable, and (C) if
certificated, certificates representing shares of the Preferred Stock have been
duly executed, registered and delivered either (i) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board against payment of the consideration therefor (not less than the par
value of the Preferred Stock) as provided therein; or (ii) upon conversion,
exchange or exercise of any other Security in accordance with the terms of the
Security or the instrument governing the Security providing for the conversion,
exchange or exercise as approved by the Board, for the consideration approved by
the Board (not less than the par value of the Preferred Stock), such shares of
Preferred Stock will be validly issued, fully paid and non-assessable.
3. With
respect to the Warrants, once (A) the Board has taken all necessary corporate
action in conformity with the Articles of Incorporation and Bylaws to approve
the form, terms, execution and delivery of a warrant agreement (including a form
of certificate evidencing the Warrants), the issuance of the Warrants, the terms
of the offering thereof and related matters, and (B) the certificates evidencing
the Warrants with such terms are duly executed, attested, issued and delivered
by duly authorized officers of the Company in accordance with the provisions of
the applicable warrant agreement and the applicable definitive purchase,
underwriting or similar agreement approved by the Board against payment of the
consideration therefor as provided therein, such Warrants will be binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
4. With
respect to any series or class of Rights, once (i) the Board of Directors of the
Company has taken all necessary corporate action to authorize the issuance and
the specific terms of such Rights, the terms of the offering thereof, and
related matters and (ii) such Rights and agreements, if any, relating to the
Rights have been duly executed and delivered in accordance with the terms
thereof (assuming the securities underlying the Rights have been duly
authorized, and validly issued by all necessary corporate action and in
accordance with applicable law), and such Rights are issued and sold as
contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), then such Rights will be valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms.
American Lorain
Page 4
5. With
respect to the Units, once (A) the Board has taken all necessary corporate
action in conformity with the Articles of Incorporation and Bylaws to approve
the form, terms, execution and delivery of a unit agreement (including a form of
certificate evidencing the Units), the issuance of the Units, the terms of the
offering thereof and related matters, and (B) the certificates evidencing Units
with such terms are duly executed, attested, issued and delivered by duly
authorized officers of the Company in accordance with the provisions of the
applicable unit agreement and the applicable definitive purchase, underwriting
or similar agreement approved by the Board against payment of the consideration
therefor as provided therein, such Units will constitute binding obligations of
the Company, enforceable against the Company in accordance with their terms.
Our opinion expressed herein is as of the date hereof, and we
undertake no obligation to advise you of any changes in applicable law or any
other matters that may come to our attention after the date hereof that may
affect our opinions expressed herein.
We consent to the filing of this opinion letter as an exhibit
to the Registration Statement and to the use of our name under the heading
Legal Matters in the prospectus constituting a part thereof. In giving such
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission thereunder.
Very truly yours, |
|
|
/s/Dentons US, LLP |
|
Dentons US, LLP
|
![](exhibi1.jpg)
American Lorain Corp. (AMEX:ALN)
Historical Stock Chart
Von Jun 2024 bis Jul 2024
American Lorain Corp. (AMEX:ALN)
Historical Stock Chart
Von Jul 2023 bis Jul 2024