|
As
Filed with the Securities and Exchange Commission on October
31,
2008
|
Registration
No. 333-150830
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
PRE-EFFECTIVE
AMENDMENT NO. 2 ON
FORM
S-1/A
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ASIA
TIME CORPORATION
(Name
of Registrant As Specified in its Charter)
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Delaware
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3873
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20-4062619
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(State or Other Jurisdiction of
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(Primary Standard Industrial
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(I.R.S. Employer Identification No.)
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Incorporation
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Classification Code Number)
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or Organization)
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Room 1601-1604,
16/F., CRE Centre
889
Cheung Sha Wan Road
Kowloon,
Hong Kong
(852)-23100101
(Address
and Telephone Number of Principal Executive Offices)
Kwong
Kai Shun
Room
1601-1604, 16/F., CRE Centre
889
Cheung Sha Wan Road
Kowloon,
Hong Kong
(852)-23100101
(Name,
Address and Telephone Number of Agent for Service)
Copies
to
Thomas
J. Poletti, Esq.
Anh
Q. Tran, Esq.
K&L
Gates LLP
10100
Santa Monica Boulevard, 7th Floor
Los
Angeles, California 90067
Telephone
(310) 552-5000
Facsimile
(310) 552-5001
Approximate
Date of Proposed Sale to the Public:
From
time
to time after the effective date of this Registration Statement
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.
R
If
this
form is filed to register additional securities for an offering pursuant to
Rule
462(b) 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(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 the same
offering.
£
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):
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Large accelerated filer
¨
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Accelerated filer
¨
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Non-accelerated filer
þ
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Smaller reporting company
¨
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CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Amount of
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Title of Each Class of
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Amount To Be
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Offering Price
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Aggregate
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Registration
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Securities To Be Registered
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Registered
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Per Share
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Offering Price
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Fee
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Common
Stock, $.0001 par value per share
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200,000
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(1)
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$
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4.61
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(2)
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$
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920,000
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(2)
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$
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36.16
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Variable
Rate Convertible Bonds Due 2012
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$
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8,000,000
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(3)
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100
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%
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$
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8,000,000
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(4)
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$
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314.40
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Common
Stock, $.0001 par value per share, issuable upon conversion of Variable
Rate Convertible Bonds Due 2012
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2,285,714
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(5)
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-
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-
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N/A
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(6)
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Bond
Warrants to Purchase Common Stock Expiring 2010
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600,000
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(7)
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$
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4.61
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(2)
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$
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2,760,000
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(2)
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$
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108.47
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Common
Stock, $.0001 par value per share issuable upon conversion of Bond
Warrants Expiring 2010
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600,000
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(8)
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-
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-
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N/A
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(6)
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Total
Registration Fee
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$
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459.03
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(9)
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(1)
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Represents
shares of the Registrant’s common stock being registered for resale that
have been issued to a selling security holder named in the prospectus
or a
prospectus supplement.
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(2)
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Estimated
pursuant to Rule 457(c) of the Securities Act of 1933 solely for
the
purpose of computing the amount of the registration fee based on
the
average of the high and low sales prices reported on the American
Stock
Exchange on May 6, 2008.
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(3)
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Represents
the aggregate principal amount of the Variable Rate Convertible Bonds
due
2012 issued by the Registrant on November 13,
2007.
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(4)
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Equals
the aggregate principal amount of the Variable Rate Convertible Bonds
due
2012 being registered. Estimated solely for purposes of calculating
the
registration fee pursuant to Rule 457(o) under the Securities Act
of 1933,
as amended, or the Securities Act.
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(5)
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Represents
the number of shares of common stock initially issuable upon conversion
of
the Variable Rate Convertible Bonds due 2012 registered hereby. Solely
for
purposes of determining the number of shares of common stock to be
registered under this registration statement that may be issued upon
the
conversion of the Bonds, the conversion price of $3.50 per share
is used.
Pursuant to Rule 416 under the Securities Act, also includes such
indeterminate number of shares of common stock as may be issued from
time
to time upon conversion of the Variable Rate Convertible Bonds due
2012 as
a result of the anti-dilution provisions contained
therein.
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(6)
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No
separate consideration will be received for the shares of common
stock
issuable upon conversion of the Variable Rate Convertible Bonds due
2012
or the Bond Warrants, and, therefore, no registration fee is required
pursuant to Rule 457(i) under the Securities
Act.
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(7)
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Consists
of 600,000 warrants (the “Bond Warrants”) to purchase 600,000 shares of
Common Stock to be offered for sale by a selling security holder
under
this Registration Statement.
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(8)
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Represents
the number of shares of common stock initially issuable upon exercise
of
the Bond Warrants due 2010 registered hereby. Pursuant to Rule 416
under
the Securities Act, also includes such indeterminate number of shares
of
common stock as may be issued from time to time upon conversion of
the
Bond Warrants due 2010 as a result of the anti-dilution provisions
contained therein. In addition, this Registration Statement covers
the
issuance of Registrant’s common stock upon the exercise of Bond Warrants
by the holders other than the initial
holder.
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The
Registrant 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
hereafter become effective in accordance with Section 8(a) of the Securities
Act
of 1933, or until the registration statement shall become effective on such
date
as the Commission, acting pursuant to Section 8(a), may
determine.
Explanatory
Note
This
Amendment No. 2 to the Form S-1/A is being filed solely to (i) amend and
restate
the “SELLING SECURITY HOLDERS” section beginning on page 61, (ii) amend and
restate Part II (INFORMATION NOT REQUIRED IN THIS PROSPECTUS) of the
registration statement, and (iii) amend and restate Exhibit 5.1. No changes
are
being made to the registration statement other than indicated
above.
General
On
November 13, 2007, we completed a financing transaction with ABN AMRO pursuant
to which we issued the Bonds and the Bond Warrants. Each Bond is convertible
at
the option of the holder at any time after February 12, 2009 into shares of
our
common stock at an initial conversion price equal to $3.50 per share, the price
at which shares were sold in our initial public offering of common stock on
AMEX. The conversion price is subject to adjustment in certain events, including
our issuance of additional shares of common stock or rights to purchase common
stock at a per share or per share exercise or conversion price, respectively,
at
less than the applicable per share conversion price of the Bonds. In addition,
if for the period of 20 consecutive trading days immediately prior to November
13, 2009 or September 29, 2012, the conversion price for the Bonds is higher
than the average closing price for the shares, then the conversion price will
be
reset to such average closing price; provided that, the conversion price will
not be reset lower than 70% of the then existing conversion price. We agreed
to
register the Bonds, the Bond Warrants and the shares of common stock underlying
the Bonds and the Bond Warrants. A total of 2,285,714 shares of common stock
may
be acquired upon conversion of the Bonds and 600,000 may be acquired upon
exercise of the Bond Warrants, each subject to adjustment.
The
total
dollar value of the securities underlying the Bonds that we are registering
for
resale is $8.0 million, which is based on 2,285,714 shares of our common stock
issuable upon conversion of the Bonds that we have registered for resale and
a
market price per share of $3.50. At the time that the Bonds were sold, on
November 13, 2007, there was no public trading market for our securities, and
the $3.50 market price per share was the mid-point of the proposed offering
at
the time of the sale of the Bonds and the per share price at which we sold
our
common stock in our initial public offering that we conducted in connection
with
our initial listing on the American Stock Exchange in February
2008.
We
intend
to make, and believe that we have a reasonable basis to believe that we will
have the financial ability to make, all payments on the Bonds.
Prior
to
the issuance of the Bonds and Bond Warrants on November 13, 2007, the number
of
our common shares outstanding that were held by persons other than the selling
security holders, affiliates of the Company, and affiliates of the selling
security holders was 4,402,209 shares. The number of shares registered for
resale on behalf of the selling security holders or affiliates of the selling
security holders in the current transaction is 3,085,714 shares. Based on
information obtained from the selling security holders, the selling security
holders do not have an existing short position in our common stock.
On
January 16, 2008, we entered into a consulting agreement with Public Equity
Group Inc. Pursuant to the agreement, Public Equity Group will provide us with
business consulting and investor relation services, oversee of all of our
investor public relation and related service providers, and monitor our investor
relation meetings with brokerage firms and brokers to develop support for our
stock and research coverage, in addition to strategic advice and other customary
investor relation services. The agreement has a term of one year, unless
terminated earlier with 60-days prior written notice. As consideration for
entering in the agreement and compensation for Public Equity Group’s services
under the agreement, we agreed to issue 200,000 shares of our common stock
to
Public Equity Group Inc.
The
selling security holders may from time to time offer for resale and sell (i)
the
Bonds, (ii) the Bond Warrants, and (iii) up to 3,085,714 shares of common
stock, which includes 2,285,714 shares that may be acquired upon conversion
of
the Bonds and 600,000 shares that may be acquired upon exercise of the Bond
Warrants, subject to adjustment.
When
we
refer to the “selling security holders” in this prospectus, we mean those
persons listed in the table below or in any prospectus supplement, as well
as
the pledgees, donees, assignees, transferees, successors and others who later
hold any of the selling security holders’ interests. The selling security
holders may resell the securities covered by this prospectus as provided under
the section entitled “Plan of Distribution” and in any applicable prospectus
supplement.
Payments
and Potential Payments Required in Connection with the Issuance of the
Securities Being Registered
The
following table discloses the dollar amount of each payment (including the
value
of any payments to be made in common stock) that we have made or may be required
to make to any selling security holder, any affiliate of a selling security
holder, or any person with whom any selling security holder has a contractual
relationship in connection with the Bonds and Bond Warrants (including any
interest payments, liquidated damages, payments made to “finders” or “placement
agents,” and any other payments or potential payments).
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Type
of Payment
Event
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Dollar
Amount of
Payment,
if Payment is
Required
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Description
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Commission
to ABN AMRO
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$240,000
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The
Bonds were subscribed at a price equal to 97% of their principal
amount of
$8,000,000, which is the issue price of 100% less a 3% commission,
or
$240,000, to the Subscriber.
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Warrants
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$2,099,940
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|
On
the date that the Bonds were issued, we issued ABN AMRO 600,000
warrants,
which are exercisable from February 12, 2009 until November 6,
2010. The
warrants are exercisable at $0.0001 per share. Based on the $3.50
per
share market price, the Warrants have a value of
$2,099,940.
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Standard
Interest
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Up
to approximately
$1,440,000
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The
Bonds bear interest from November 13, 2007 at the rate of 6% per
annum for
the first year after November 13, 2007 and 3% per annum thereafter,
of the
principal amount of the Bonds.
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Mandatory
Redemption at Maturity
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Up
to approximately
$4,069,600
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We
are required to redeem any outstanding Bonds at 150.87% of their
principal
amount on November 13, 2012. This may result in us having to pay
up to an
additional $4,069,600 to the Bondholders.
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Redemption
at the Bondholder’s Option – Breach of Registration
Obligations
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Up
to approximately
$362,400
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If
we breach certain of our obligations to register the Bonds, Bond
Warrants
and underlying shares as promptly as possible, and in no event
later than
February 12, 2009, pursuant to the registration rights agreement
dated
November 13, 2007 entered into by and between the Subscriber and
us, then
holders of the Bonds can require us to redeem the Bonds at 104.53%
of the
principal amount of the Bonds at any time after November 13, 2008.
This
may result in us having to pay up to an additional $362,400 to
the
Bondholders.
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Redemption
at the Bondholder’s Option
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Up
to approximately
$2,120,800
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|
In
addition, at any time after November 13, 2010, holders of the Bonds
can
require us to redeem the Bonds at 126.51% of the principal amount.
This
may result in us having to pay up to an additional $2,120,800 to
the
Bondholders.
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Redemption
for Tax Reasons
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Between
approximately
$362,400
and $4,069,600
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|
At
any time, we may, having given not less than 30 nor more than 60
days’
notice to the Bondholders, redeem all, but not some only, of the
Bonds at
a redemption price equal to the early redemption amount on the
redemption
date if (i) we have or will become obliged to pay additional amounts
for
any present or future taxes, duties, assessments or governmental
charges,
as a result of a change in, or amendment to, the laws of the Unites
States, the PRC or England, and (ii) the obligation to pay additional
amounts cannot be avoided provided that we do not give notice of
redemption earlier than 90 days prior to the earliest date on which
we
would be obliged to pay such additional amounts were a payment
in respect
of the Bonds then due.
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Redemption
for Delisting or a Change in Control
|
|
Between
approximately
$362,400
and $4,069,600
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|
If
our common stock ceases to be listed on AMEX or if the trading
of our
common stock is suspended for 20 or more consecutive trading days
temporarily or otherwise on AMEX or there is a change of control
of our
company as defined in the Trust Deed, each Bondholder will have
the right
to require us, within 60 days following the date on which the Bondholder
has been given notice of delisting or a change of control, to redeem
all
or some of that holder’s Bonds.
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Redemption
at Our Option
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Up
to approximately
$4,800,000
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At
any time prior to November 13, 2012, we may, having given not less
than 30
nor more than 60 days’ notice to the Bondholders, and The Bank of New
York, London Branch (the “Trustee”) and The Bank of New York, London
Branch (the “Principal Agent,”) which notice will be irrevocable, redeem
all and not some only of the Bonds at a redemption price equal
to the
early redemption amount on the redemption date if more than ninety
percent
in principal amount of the Bonds has already been converted, redeemed
or
purchased and cancelled. The early redemption amount of a Bond,
for each
US$1,000 principal amount of the Bonds, is determined so that it
represents for the Bondholder a gross yield of twelve percent per
annum,
calculated on a semi-annual basis. This may result in us having
to pay up
to an additional $4,800,000 to the
Bondholders.
|
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Type
of Payment
Event
|
|
Dollar
Amount of
Payment,
if Payment is
Required
|
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Description
|
|
Expenses
Related to the Bonds and Warrants
|
|
At
least $106,000
|
|
We
agreed to pay all costs and expenses, to the extent reasonably
and
properly incurred, related to:
(i)
all
costs and expenses in connection with the preparation of the Bonds,
the
Warrants, and all other documents relating to the issue of the
Bonds or
the Warrants;
(ii)
the
initial delivery and distribution (including transportation and
packaging
but not insurance (other than to the place of distribution)) of
the Bonds
or the Warrants;
(iii)
the
listing of the Shares on the AMEX or any Alternative Stock
Exchange;
(iv)
the
fees and expenses of ABN AMRO’s legal counsel and any other professional
advisers in connection with the issue of the Bonds or the Warrants,
including, but not limited to, all traveling, telecommunications,
accommodation, and postage expenses; and
(v)
the
Trustee and the agents appointed under the Trust Deed and the Agency
Agreement in connection with the performance of their duties under
such
agreements, including the legal fees and expenses of Trustee's
counsel.
To
date, we have expended approximately $82,000 in
trustee related fees and for legal fees. In addition, we will incur
at
least $6,000 for each of the next four years for the annual trustee
fees.
We are obligated to pay such fees and costs, as described above,
as they
are reasonably and properly incurred. There is no maximum cap on
such fees
that we are required to pay.
|
Subject
to the potential events and related payments described above, the total possible
payments to the Bondholders and Bond Warrantholders and any of their affiliates
in the first year following the sale of the Bonds is approximately $2,819,940,
which accounts for the 3% commission to ABN AMRO ($240,000), first year’s
interest at 6% ($480,000), and the market value of the Warrants
($2,099,940).
For
information regarding net proceeds of the Company and potential profits
for the
Bondholder, see below at “Comparison of Company Expenses and Net Proceeds and
Potential Investor Profit.”
Potential
Profits on Conversion of Bonds and Exercise of Warrants
If
for
the period of 20 consecutive trading days immediately prior to November 13,
2009
or September 29, 2012, the conversion price for the Bonds is higher than the
average closing price for the shares, then the conversion price will be reset
to
such average closing price; provided that, the conversion price will not be
reset lower than 70% of the then existing conversion price. The table below
shows the potential profit that ABN AMRO could realize if the conversion price
is reset to 70% of the conversion price, based on the current conversion price
of $3.50 per share.
|
Selling Security Holder
|
|
Market Price
per share of
Common
Stock on
Closing Date
|
|
Conversion
Price of
Bonds, if adjusted
to 70% of
Conversion Price
|
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Total Shares
underlying
the Bonds,
(based on
reduced
conversion
price)
|
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Combined
Market Price
of Shares
underlying
the Bonds
|
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Combined
Conversion
Price of
Shares
underlying
Bonds
|
|
Total
Possible
Discount to
Market
Price
|
|
|
ABN
AMRO Bank N.V.
|
|
$
|
3.50
|
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$
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2.45
|
|
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3,265,306
|
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$
|
11,428,571
|
|
$
|
8,000,000
|
|
$
|
3,428,571
|
|
On
the
date that the Bonds were issued, we issued ABN AMRO 600,000 warrants, the
Warrants, which are exercisable from February 12, 2009 until November 6, 2010
at
an exercise price of $0.0001 per share. Based on the $3.50 per share market
price on the date the Warrants were issued, ABN AMRO would realize a profit
of
$2,099,940 upon the exercise of the Warrants.
Comparison
of Company Proceeds and Potential Investor Profit
The
table
below illustrates the net proceeds received by us and the potential profit
that
the investor in the Bonds and Warrants may realize.
Costs,
Expenses and Net Proceeds of the Company
|
|
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Costs
and expenses paid or to be paid by the Company
|
|
Total
amount of possible payments by the Company
|
|
Net
proceeds (loss) from sale of the Bonds under each redemption
scenario
|
|
Amount
of possible payments compared to net proceeds (as a
percentage)
|
|
Amount
of possible payments compared to net proceeds (as a percentage)
averaged
over five-year term of the bonds
|
|
Gross
Proceeds from the Bonds
|
$
|
8,000,000
|
|
|
|
|
|
|
|
|
|
|
Less
fees and expenses
|
|
(106,000)
|
(1)
|
|
|
|
|
|
|
|
|
|
Less
payment of 3% commission
|
|
(240,000)
|
(2)
|
|
|
|
|
|
|
|
|
|
Less
value of the Warrants
|
|
(2,099,940)
|
(3)
|
|
|
|
|
|
|
|
|
|
Less
standard interest
|
|
(1,440,000)
|
(4)
|
|
|
|
|
|
|
|
|
|
Proceeds
after fees, expenses, commission and standard interest
|
$
|
4,114,060
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments
from the Company to the Bondholder under Each Possible Redemption
Scenario:
|
|
|
|
|
|
|
|
|
|
|
|
|
Mandatory
Redemption at Maturity
-
redemption of the Bonds at 150.87%
|
|
(4,069,600)
|
(5)
|
(7,955,540)
|
|
$
44,460
|
|
17,894%
|
|
3,579%
|
|
|
Redemption
at the Bondholder’s Option for Breach of Registration Obligations
-
redemption of the Bonds at 104.53%
|
|
(362,400)
|
(6)
|
(4,248,340)
|
|
$
3,751,660
|
|
113%
|
|
23%
|
|
|
Redemption
at the Bondholder’s Option
-
redemption of the Bonds at 126.51%
|
|
(2,120,800)
|
(7)
|
(6,006,740)
|
|
$
1,993,260
|
|
301%
|
|
60%
|
|
|
Redemption
for Tax Reasons
-
redemption of the Bonds at redemption rate up to
150.87%
|
|
(4,069,600)
|
(8)
|
(7,955,540)
|
|
$
44,460
|
|
17,894%
|
|
3,579%
|
|
|
Redemption
for Delisting or a Change in Control
-
redemption of the Bonds at redemption rate up to
150.87%
|
|
(4,069,600)
|
(9)
|
(7,955,540)
|
|
$
44,460
|
|
17,894%
|
|
3,579%
|
|
|
Redemption
at Our Option
-
redemption of the Bonds at yield of twelve percent per
annum
|
|
(4,800,000)
|
(10)
|
(8,685,940)
|
|
$
(685,940)
|
|
(1,266)%
|
|
(253%
|
)
|
|
(1)
|
To
date, we have expended approximately $82,000 in trustee related
fees and
for legal fees. In addition, we will incur at least $6,000 for
each of the
next four years for the annual trustee fees. In addition, this
amount
excludes an additional indeterminate amount for fees and expenses
required
to be paid by us for the benefit of the investor in connection
with the
Bonds and the Warrants, including ABN AMRO’s legal counsel and other
professional adviser fees and expenses, listing of the shares on
the AMEX,
and fees incurred for the Trustee and the agents appointed under
the Trust
Deed and the Agency Agreement in connection with the performance
of their
duties under such agreements, including the legal fees and expenses
of
Trustee's counsel. We are obligated to pay such fees and costs,
as
described above, as they are reasonably and properly incurred.
There is no
maximum cap on such fees that we are required to pay.
|
|
(2)
|
The
Bonds were subscribed at a price equal to 97% of their principal
amount of
$8,000,000, which is the issue price of 100% less a 3% commission,
or
$240,000, to the Subscriber.
|
|
(3)
|
On
the date that the Bonds were issued, we issued ABN AMRO 600,000
warrants,
which are exercisable from February 12, 2009 until November 6,
2010. The
warrants are exercisable at $0.0001 per share. Based on the $3.50
per
share market price, the Warrants have a value of
$2,099,940.
|
|
(4)
|
The
Bonds bear interest from November 13, 2007 at the rate of 6% per
annum for
the first year after November 13, 2007 and 3% per annum thereafter,
of the
principal amount of the Bonds. Interest is payable semi-annually
in
arrears on May 13 and November 13 of each
year.
|
|
(5)
|
We
are required to redeem any outstanding Bonds at 150.87% of their principal
amount on November 13, 2012. After payment of this full redemption
amount,
assuming none of the Bonds had been previously redeemed, we would
have net
proceeds of $2,144,400.
|
|
(6)
|
If
we breach certain of our obligations to register the Bonds, Bond
Warrants
and underlying shares as promptly as possible, and in no event
later than
February 12, 2009, pursuant to the registration rights agreement
dated
November 13, 2007 entered into by and between the Subscriber and
us, then
holders of the Bonds can require us to redeem the Bonds at 104.53%
of the
principal amount of the Bonds at any time after November 13, 2008.
This
may result in us having to pay up to an additional $362,400 to
the
Bondholders. After payment of the full potential redemption amount,
assuming none of the Bonds had been previously redeemed, we would
have net
proceeds of $5,851,600.
|
|
(7)
|
At
any time after November 13, 2010, holders of the Bonds can require
us to
redeem the Bonds at 126.51% of the principal amount. This may result
in us
having to pay up to $2,120,800 to the Bondholders in addition to
the
principal amount of the Bonds. After payment of the full potential
redemption amount, assuming none of the Bonds had been previously
redeemed, we would have net proceeds of
$4,093,200.
|
|
(8)
|
At
any time, we may, having given not less than 30 nor more than 60
days’
notice to the Bondholders, redeem all, but not some only, of the
Bonds at
a redemption price equal to the early redemption amount on the
redemption
date if (i) we have or will become obliged to pay additional amounts
for
any present or future taxes, duties, assessments or governmental
charges,
as a result of a change in, or amendment to, the laws of the Unites
States, the PRC or England, and (ii) the obligation to pay additional
amounts cannot be avoided provided that we do not give notice of
redemption earlier than 90 days prior to the earliest date on which
we
would be obliged to pay such additional amounts were a payment
in respect
of the Bonds then due. The cost for redemption for tax reasons
would range
between approximately $362,400 and $4,069,600, depending on the
date of
the redemption and related early redemption rate. After payment
of the
full potential redemption amount, assuming none of the Bonds had
been
previously redeemed, we would have net proceeds of
$2,144,400.
|
|
(9)
|
If
our common stock ceases to be listed on AMEX or if the trading
of our
common stock is suspended for 20 or more consecutive trading days
temporarily or otherwise on AMEX or there is a change of control
of our
company as defined in the Trust Deed, each Bondholder will have
the right
to require us, within 60 days following the date on which the Bondholder
has been given notice of delisting or a change of control, to redeem
all
or some of that holder’s Bonds. The cost for redemption for delisting or
change in control reasons would range between approximately $362,400
and
$4,069,600, depending on the date of the redemption and related
early
redemption rate. After payment of the full potential redemption
amount,
assuming none of the Bonds had been previously redeemed, we would
have net
proceeds of $2,144,400.
|
|
(10)
|
At
any time prior to November 13, 2012, we may, having given not less
than 30
nor more than 60 days’ notice to the Bondholders, and The Bank of New
York, London Branch (the “Trustee”) and The Bank of New York, London
Branch (the “Principal Agent,”) which notice will be irrevocable, redeem
all and not some only of the Bonds at a redemption price equal
to the
early redemption amount on the redemption date if more than ninety
percent
in principal amount of the Bonds has already been converted, redeemed
or
purchased and cancelled. The early redemption amount of a Bond,
for each
US$1,000 principal amount of the Bonds, is determined so that it
represents for the Bondholder a gross yield of twelve percent per
annum,
calculated on a semi-annual basis. This may result in us having
to pay up
to approximately $4,800,000 to the Bondholders in addition to the
principal amount of the Bonds. After payment of the full potential
redemption amount, assuming none of the Bonds had been previously
redeemed, we would have net proceeds of
$1,414,000.
|
Potential
Profits of the Bondholder
|
|
|
Amounts
received or to be received by the Bondholder (not including
principal)
|
|
Potential
profit to Bondholder under each redemption scenario (not including
principal)
|
|
|
Fees
and expenses paid for benefit of Bondholder
|
|
$
|
106,000
|
|
|
|
|
|
Payment
of 3% commission
|
|
|
240,000
|
|
|
|
|
|
Value
of the Warrants
|
|
|
2,099,940
|
|
|
|
|
|
Standard
interest
|
|
|
1,440,000
|
|
|
|
|
|
Total
benefit of fees, expenses, commission and standard interest for
benefit of
Bondholder
|
|
$
|
3,885,940
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments
from the Company to the Bondholder under Each Possible Redemption
Scenario:
|
|
|
|
|
|
|
|
|
Mandatory
Redemption at Maturity
-
redemption of the Bonds at 150.87%
|
|
|
4,069,600
|
|
$
|
7,955,540
|
|
|
Redemption
at the Bondholder’s Option for Breach of Registration Obligations
-
redemption of the Bonds at 104.53%
|
|
|
362,400
|
|
$
|
4,248,340
|
|
|
Redemption
at the Bondholder’s Option
-
redemption of the Bonds at 126.51%
|
|
|
2,120,800
|
|
$
|
6,006,740
|
|
|
Redemption
for Tax Reasons
-
redemption of the Bonds at redemption rate up to
150.87%
|
|
|
4,069,600
|
|
$
|
7,955,540
|
|
|
Redemption
for Delisting or a Change in Control
-
redemption of the Bonds at redemption rate up to
150.87%
|
|
|
4,069,600
|
|
$
|
7,955,540
|
|
|
Redemption
at Our Option
-
redemption of the Bonds at yield of twelve percent per
annum
|
|
|
4,800,000
|
|
$
|
8,685,940
|
|
In
addition to the potential net proceeds to the Company and potential profits
to
the Bondholder for each redemption scenario as set forth in the tables
above,
the Company may incur additional expenses, and therefore reduced profits,
if
any, and the Bondholder may receive additional profits if the conversion
price
is reduced pursuant to the terms of the Bonds. According to the Trust Deed,
if
for the period of 20 consecutive trading days immediately prior to November
13,
2009 or September 29, 2012, the conversion price for the Bonds is higher
than
the average closing price for the shares, then the conversion price will
be
reset to such average closing price; provided that, the conversion price
will
not be reset lower than 70% of the then existing conversion price. Based
on the
market value of our securities on the date of issuance of the Bonds, ABN
AMRO
could realize an additional profit of $3,428,571 as a result of the conversion
discount, and the Company would incur an additional expense in this
amount.
Selling
Security Holders Table
The
following table sets forth information as of the date of this prospectus, with
respect to the selling security holders and the principal amounts of bonds
beneficially owned by each selling security holder that may be offered under
this prospectus. Information concerning the selling security holders may change
from time to time and any changed information will be set forth in supplements
to this prospectus if and when necessary. In addition, the conversion rate
and,
therefore, the number of shares of common stock issuable upon conversion of
the
bonds, is subject to adjustment under certain circumstances.
On
the
date of this prospectus, 26,570,677 shares of our commons stock were
outstanding. This number of shares of our common stock outstanding excludes
(i)
83,800 shares of our common stock issuable upon exercise of outstanding
warrants, (ii) 2,285,714 shares of our common stock issuable upon the conversion
of the Bonds, subject to adjustment, and (iii) 600,000 shares of our common
stock issuable upon the exercise of the Bond Warrants, subject to
adjustment.
|
Name of Selling
Security Holder
|
|
Beneficial Ownership
of Shares of Common
Stock Prior to the
Offering
|
|
Shares of
Common Stock
Being Offered
|
|
Principal Amount of
Bonds Beneficially
Owned Prior to the
Offering
|
|
Bonds Being
Offered
|
|
Number of Bond
Warrants Being
Offered
|
|
|
ABN
AMRO Bank N.V.
|
|
|
—
|
|
|
2,885,714
|
(1)
|
$
|
8,000,000
|
|
$
|
8,000,000
|
|
|
600,000
|
|
|
Public
Equity Group(2)
|
|
|
200,000
|
|
|
200,000
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
(1)
|
Consists
of (i) 2,285,714 shares of common stock may be acquired upon conversion
of
the Bonds, which are not convertible until February 12, 2009, and
(ii)
600,000 shares of common stock that may be acquired upon exercise
of the
Bond Warrants which become exercisable on February 12, 2009. For
purposes
of calculating the number of shares of common stock owned by ABN
AMRO as
of the date of this prospectus, we have calculated the number of
shares
issuable upon conversion of the Bonds based on an initial conversion
price
equal to $3.50 per share, the price at which shares were sold in
our
initial public offering on AMEX. Based on information provided to
us by
ABN AMRO, ABN AMRO is an affiliate of a broker-dealer and it acquired
these securities in the ordinary course of business and, at the time
of
the acquisition of these securities, it had no agreements or
understandings, directly or indirectly, with any person to distribute
these securities. Graeme Booth and Alex Gardner have voting and investment
control over the securities owned by this
entity.
|
|
|
(2)
|
Brad
Stewart has voting and investment control over the shares owned by
this
entity. On January 16, 2008, we entered into a consulting agreement
with
Public Equity Group Inc. Pursuant to the agreement, Public Equity
Group
will provide us with business consulting and investor relation services,
oversee of all of our investor public relation and related service
providers, and monitor our investor relation meetings with brokerage
firms
and brokers to develop support for our stock and research coverage,
in
addition to strategic advice and other customary investor relation
services. The agreement has a term of one year, unless terminated
earlier
with 60-days prior written notice. As consideration for entering
into the
agreement and compensation for Public Equity Group’s services under the
agreement, we issued 200,000 shares of our common stock to Public
Equity
Group Inc.
|
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
13. Indemnification of directors and officers
Under
Section 145 of the General Corporation Law of the State of Delaware, the Company
can indemnify its directors and officers against liabilities they may incur
in
such capacities, including liabilities under the Securities Act of 1933, as
amended (the “Securities Act”). The Company’s certificate of incorporation
provides that, pursuant to Delaware law, its directors shall not be liable
for
monetary damages for breach of the directors’ fiduciary duty of care to the
Company and its stockholders. This provision in the certificate of incorporation
does not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of nonmonetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director’s duty of loyalty to the Company
or its stockholders, for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of the law, for actions leading
to
improper personal benefit to the director, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision also does not affect a director’s responsibilities under any
other law, such as the federal securities laws or state or federal environmental
laws.
The
Company’s bylaws provide for the indemnification of its directors to the fullest
extent permitted by the Delaware General Corporation Law. The Company’s bylaws
further provide that its Board of Directors has discretion to indemnify its
officers and other employees. The Company is required to advance, prior to
the
final disposition of any proceeding, promptly on request, all expenses incurred
by any director or executive officer in connection with that proceeding on
receipt of an undertaking by or on behalf of that director or executive officer
to repay those amounts if it should be determined ultimately that he or she
is
not entitled to be indemnified under the Company’s bylaws or otherwise. The
Company is not, however, required to advance any expenses in connection with
any
proceeding if a determination is reasonably and promptly made by its Board
of
Directors by a majority vote of a quorum of disinterested Board members that
(a)
the party seeking an advance acted in bad faith or deliberately breached his
or
her duty to the Company or its stockholders and (b) as a result of such actions
by the party seeking an advance, it is more likely than not that it will
ultimately be determined that such party is not entitled to indemnification
pursuant to the applicable sections of its bylaws.
The
Company has been advised that in the opinion of the Securities and Exchange
Commission, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to the Company’s directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, such
indemnification is against public policy as expressed in the Securities Act
and
is therefore unenforceable. In the event a claim for indemnification against
such liabilities (other than the Company’s payment of expenses incurred or paid
by its director, officer or controlling person 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 Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by the Company is against public policy as expressed in
the
Securities Act and will be governed by the final adjudication of such
issue.
The
Company will enter into indemnification agreements with each of its directors
and officers that are, in some cases, broader than the specific indemnification
provisions permitted by Delaware law, and that may provide additional procedural
protection. The indemnification agreements require the Company, among other
things, to:
|
|
•
|
indemnify
officers and directors against certain liabilities that may arise
because
of their status as officers or
directors;
|
|
|
•
|
advance
expenses, as incurred, to officers and directors in connection with
a
legal proceeding, subject to limited exceptions;
or
|
|
|
•
|
obtain
directors’ and officers’ insurance.
|
At
present, there is no pending litigation or proceeding involving any of the
Company’s directors, officers or employees in which indemnification is sought,
nor is the Company aware of any threatened litigation that may result in claims
for indemnification.
Item
14. Other expenses of issuance and distribution
The
following table sets forth the costs and expenses payable by the Registrant
relating to the sale of securities being registered. All amounts are estimates
except the SEC registration fee.
|
Securities
and Exchange Commission registration fee
|
|
$
|
459
|
|
|
Transfer
Agent Fees
|
|
|
1,000
|
|
|
Accounting
fees and expenses
|
|
|
30,000
|
|
|
Legal
fees and expenses
|
|
|
50,000
|
|
|
Miscellaneous
|
|
|
18,541
|
|
|
Total
|
|
$
|
100,000
|
|
Item
15. Recent sales of unregistered securities
In
February 2008, we issued 200,000 shares of our common stock to Public Equity
Group Inc. in connection with a consulting agreement and investor relation
services. The securities were offered and sold to consulting firm in reliance
upon exemptions from registration pursuant to Section 4(2) under the Securities
Act of 1933, as amended, and Rule 506 promulgated thereunder. The firm is
qualified as an accredited investor (as defined by Rule 501 under the Securities
Act of 1933, as amended).
On
November 13, 2007, we completed a financing transaction with ABN AMRO Bank
N.V.
(the “Subscriber”) under Regulation S of the Securities Act of 1933, as amended
(the “Securities Act”) and issued (i) $8,000,000 Variable Rate Convertible Bonds
due in 2012 (the “Bonds”) and (ii) 600,000 warrants to purchase an aggregate of
600,000 shares of our common stock, subject to adjustments for stock splits
or
reorganizations as set forth in the warrant, that expire in 2010 (the “Bond
Warrants”). The Bonds and Bond Warrants were offered and sold to the Subscriber
in reliance upon exemption from registration pursuant to Regulation S of the
Securities Act. We complied with the conditions of Rule 903 as promulgated
under
the Securities Act including, but not limited to, the following: (i) Subscriber
is a non-U.S. resident and has not offered or sold their shares in accordance
with the provisions of Regulation S; (ii) an appropriate legend was affixed
to
the securities issued in accordance with Regulation S; (iii) Subscriber has
represented that it was not acquiring the securities for the account or benefit
of a U.S. person; and (iv) Subscriber agreed to resell the securities only
in
accordance with the provisions of Regulation S, pursuant to a registration
statement under the Securities Act, or pursuant to an available exemption from
registration. We will refuse to register any transfer of the shares not made
in
accordance with Regulation S, after registration, or under an exemption.
On
January 23, 2007, pursuant to the terms of the Exchange Agreement entered into
by and between us, Times Manufacture & E-Commerce Corporation Limited
(“Times Manufacture”) and the sole shareholder of Times Manufacture, we issued
19,454,420 shares of common stock to Kwong Kai Shun, the sole shareholder of
Times Manufacture, in exchange for all of the issued and outstanding securities
of Times Manufacture. The securities were offered and issued to the sole
shareholder of Times Manufacture in reliance upon an exemption from registration
pursuant to Section 4(2) under the Securities Act of 1933, as amended, and
Rule
506 promulgated thereunder. Kwong Kai Shun was the principal executive officer
of Times Manufacture before the Share Exchange and became our principal
executive officer after the Share Exchange. The sole shareholder of Times
Manufacture qualified as an accredited investor (as defined by Rule 501 under
the Securities Act of 1933, as amended).
On
January 23, 2007, concurrently with the close of the Share Exchange, we
conducted an initial closing of a private placement transaction pursuant
to
which we sold an aggregate of 1,749,028 shares of Series A Convertible Preferred
Stock at $1.29 per share. On February 9, 2007, we conducted a second and
final
closing of the private placement pursuant to which we sold 501,320 shares
of
Series A Convertible Preferred Stock at $1.29 per share. Accordingly, a total
of
2,250,348 shares of Series A Convertible Preferred Stock were sold in the
private placement for an aggregate of $2,902,946 (the “Private Placement”). Each
share of the Series A Convertible Preferred Stock was convertible into
shares of common stock at a conversion price equal to the purchase price
of such
shares.
As
of
September 1, 2008, all of the Series A Convertible Preferred Stock have been
converted to common stock. Each share of the Series A Convertible Preferred
Stock was converted into shares of common stock at a conversion price equal
to
the purchase price of such shares.
The securities were offered and sold
to investors in reliance upon exemptions from registration pursuant to Section
4(2) under the Securities Act of 1933, as amended, and Rule 506 promulgated
thereunder. Each of the persons and/or entities receiving our securities
qualified as an accredited investor (as defined by Rule 501 under the Securities
Act of 1933, as amended).
Item
16. Exhibits
|
Exhibit
No.
|
|
Exhibit
Description
|
|
2.1
|
|
Share
Exchange Agreement, dated as of December 15, 2006, by and among the
Registrant, Kwong Kai Shun and Times Manufacture & E-Commerce
Corporation, Limited (incorporated by reference from Exhibit 2.1
to
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 29, 2007).
|
|
|
|
|
|
3.1
|
|
Certificate
of Incorporation (incorporated by reference from Exhibit 3.1 to
the
Registration Statement on Form 10-SB (File No. 000-51981) filed
with the
Securities and Exchange Commission on May 5, 2006).
|
|
|
|
|
|
3.2
|
|
Bylaws
(incorporated by reference from Exhibit 3.2 to the Registration
Statement
on Form 10-SB (File No. 000-51981) filed with the Securities and
Exchange
Commission on May 5, 2006).
|
|
|
|
|
|
3.3
|
|
Articles
of Merger Effecting Name Change (incorporated by reference from
Exhibit
3.3 to Current Report on Form 8-K filed with the Securities and
Exchange
Commission on January 29, 2007).
|
|
|
|
|
|
3.4
|
|
Certificate
Of Designations, Preferences And Rights Of Series A Convertible
Preferred
Stock (incorporated by reference from Exhibit 3.4 to Current Report
on
Form 8-K filed with the Securities and Exchange Commission on January
29,
2007).
|
|
|
|
|
|
4.1
|
|
Specimen
Certificate of Common Stock (incorporated by reference to Exhibit
4.1 of
the Registrant's Registration Statement on Form SB-2 filed August
20,
2004).
|
|
|
|
|
|
4.2
|
|
Trust
Deed, dated November 13, 2007, by and between the Registrant and
The Bank
of New York, London Branch (incorporated by reference to Exhibit
4.1 to
the Current Report on Form 8-K filed with the Securities and Exchange
Commission on November 16, 2007).
|
|
|
|
|
|
4.3
|
|
Paying
and Conversion Agency Agreement, dated November 13, 2007, by and
among the
Registrant, The Bank of New York, and The Bank of New York, London
Branch
(incorporated by reference to Exhibit 4.2 to the Current Report
on Form
8-K filed with the Securities and Exchange Commission on November
16,
2007).
|
|
|
|
|
|
4.4
|
|
Warrant
Instrument, dated November 13, 2007, by and between the Registrant
and ABN
AMRO Bank N.V. (incorporated by reference to Exhibit 4.3 to the
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
November 16, 2007).
|
|
|
|
|
|
4.5
|
|
Warrant
Agency Agreement, dated November 13, 2007, by and among the Registrant,
The Bank of New York and The Bank of New York, London Branch (incorporated
by reference to Exhibit 4.4 to the Current Report on Form 8-K filed
with
the Securities and Exchange Commission on November 16,
2007).
|
|
|
|
|
|
4.6
|
|
Registration
Rights Agreement, dated November 13, 2007, by and between the Registrant
and ABN AMRO Bank N.V. (incorporated by reference to Exhibit 4.5
to the
Current Report on Form 8-K filed with the Securities and Exchange
Commission on November 16, 2007).
|
|
|
|
|
|
5.1
|
|
Opinion
of K&L Gates LLP regarding validity of common
stock.
|
|
|
|
|
|
5.2**
|
|
Opinion
of K&L Gates LLP regarding bonds and warrants.
|
|
|
|
|
|
8.1**
|
|
Opinion
of K&L Gates LLP.
|
|
Exhibit
No.
|
|
Exhibit
Description
|
|
10.1
|
|
Form
of Subscription Agreement dated as of January 23, 2007 and February
9,
2007 (incorporated by reference from Exhibit 10.1 to Current Report
on
Form 8-K filed with the Securities and Exchange Commission on February
13,
2007).
|
|
|
|
|
|
10.1(a)
|
|
Form
of Amendment No. 1 dated as of July 20, 2007 to Subscription Agreement
(incorporated by reference from Exhibit 10.1(a) to Registration
Statement
on Form S-1 filed with the Securities and Exchange Commission on
December
18, 2007).
|
|
|
|
|
|
10.1(b)
|
|
Form
of Amendment No. 2 dated as of December 16, 2007 to Subscription
Agreement
(incorporated by reference from Exhibit 10.1(b) to Registration
Statement
on Form S-1 filed with the Securities and Exchange Commission on
December
18, 2007, 2008).
|
|
|
|
|
|
10.2
|
|
Form
of Agreement between Kwong Kai Shun and Investors of Series A Convertible
Preferred Stock (incorporated by reference from Exhibit 10.2 to
Registration Statement on Form S-1 filed with the Securities and
Exchange
Commission on September 26, 2007).
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|
|
|
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10.2(a)
|
|
Amendment
No. 1 to Agreement between Kwong Kai Shun and Investors of Series
A
Convertible Preferred Stock, dated June 30, 2007 (incorporated
by
reference to Exhibit 10.2(a) of the Registration Statement on Form
S-1
filed with the Securities and Exchange Commission on September
26,
2007).
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|
|
|
|
|
10.2(b)
|
|
Form
of Amendment No. 2 to Agreement between Kwong Kai Shun and Investors
of
Series A Convertible Preferred Stock (incorporated by reference
to Exhibit
10.2(b) of the Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on December 18,
2007).
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|
|
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|
|
10.3
|
|
Subscription
Agreement, dated October 31, 2007, by and between the Registrant
and ABN
AMRO Bank N.V. (incorporated by reference to Exhibit 10.3 to the
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
November 16, 2007).
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|
|
|
|
|
10.4
|
|
Registration
Rights Agreement dated January 23, 2007 entered into by and between
the
Registrant and Affiliates of WestPark Capital, Inc. (incorporated
by
reference to Exhibit 10.4 of the Registration Statement on Form
S-1 filed
with the Securities and Exchange Commission on December 18,
2007).
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|
|
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|
|
10.5
|
|
Employment
Agreement by and between King Wai Lin and the Registrant dated
April 21,
2008 (incorporated by reference to Exhibit 10.1 of the Current
Report on
Form 8-K filed with the Securities and Exchange Commission on April
24,
2008).
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|
|
|
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|
10.6
|
|
Confidential
Agreement by and between King Wai Lin and the Registrant dated
April 21,
2008 (incorporated by reference to Exhibit 10.2 of the Current
Report on
Form 8-K filed with the Securities and Exchange Commission on April
24,
2008).
|
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|
|
|
|
12.1**
|
|
Computation
of Ratio of Earnings to Fixed Charges.
|
|
|
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|
|
21.1
|
|
List
of Subsidiaries (incorporated by reference from Exhibit 21.1 to
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
January 29, 2007).
|
|
|
|
|
|
23.1**
|
|
Consent
of Dominic K. F. Chan & Co., Certified Public
Accountants.
|
|
|
|
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|
23.2
|
|
Consent
of K&L Gates LLP (contained in Exhibits 5.1 and
5.2).
|
|
|
|
|
|
24.1**
|
|
Power
of Attorney (included on signature
page).
|
____________
**
Previously filed.
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i)
To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set
forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2)
That,
for
the purpose of determining any liability under the Securities Act of 1933,
each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(4)
That,
for
the purpose of determining liability of the registrant under the Securities
Act
to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii)
any free writing prospectus relating to the offering prepared by or on behalf
of
the undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
the
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(5)
That,
for
purposes of determining liability under the Securities Act 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 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.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Registrant has duly caused
this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Kowloon, Hong Kong, on the 30th day of October,
2008.
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ASIA
TIME CORPORATION
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By:
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/s/
Kwong Kai Shun
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Name:
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Kwong
Kai Shun
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|
|
Title:
|
Chief
Executive Officer and Chairman of the
Board
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on
the
dates indicated:
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SIGNATURE
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TITLE
|
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DATE
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|
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|
|
/s/
Kwong Kai Shun
|
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Chief
Executive Officer and Chairman of the Board
|
|
October
30, 2008
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|
Kwong
Kai Shun
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|
(Principal
Executive Officer)
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/s/
King Wai Lin
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Chief
Financial Officer
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King
Wai Lin
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|
(Principal
Financial and Accounting Officer)
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/s/
Michael Mak
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Director
and Corporate Secretary
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Michael
Mak
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*
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Director
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Lee
Siu Po
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*
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Director
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Dr.
Leung Ching Wah
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*
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Director
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Wu
Hok Lun
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*
By:
|
/s/
Kwong Kai
Shun
|
|
|
as
Attorney in Fact
|
EXHIBIT
INDEX
|
Exhibit
No.
|
|
Exhibit
Description
|
|
2.1
|
|
Share
Exchange Agreement, dated as of December 15, 2006, by and among the
Registrant, Kwong Kai Shun and Times Manufacture & E-Commerce
Corporation, Limited (incorporated by reference from Exhibit 2.1
to
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 29, 2007).
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|
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3.1
|
|
Certificate
of Incorporation (incorporated by reference from Exhibit 3.1 to
the
Registration Statement on Form 10-SB (File No. 000-51981) filed
with the
Securities and Exchange Commission on May 5, 2006).
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|
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|
3.2
|
|
Bylaws
(incorporated by reference from Exhibit 3.2 to the Registration
Statement
on Form 10-SB (File No. 000-51981) filed with the Securities and
Exchange
Commission on May 5, 2006).
|
|
|
|
|
|
3.3
|
|
Articles
of Merger Effecting Name Change (incorporated by reference from
Exhibit
3.3 to Current Report on Form 8-K filed with the Securities and
Exchange
Commission on January 29, 2007).
|
|
|
|
|
|
3.4
|
|
Certificate
Of Designations, Preferences And Rights Of Series A Convertible
Preferred
Stock (incorporated by reference from Exhibit 3.4 to Current Report
on
Form 8-K filed with the Securities and Exchange Commission on January
29,
2007).
|
|
|
|
|
|
4.1
|
|
Specimen
Certificate of Common Stock (incorporated by reference to Exhibit
4.1 of
the Registrant's Registration Statement on Form SB-2 filed August
20,
2004).
|
|
|
|
|
|
4.2
|
|
Trust
Deed, dated November 13, 2007, by and between the Registrant and
The Bank
of New York, London Branch (incorporated by reference to Exhibit
4.1 to
the Current Report on Form 8-K filed with the Securities and Exchange
Commission on November 16, 2007).
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|
4.3
|
|
Paying
and Conversion Agency Agreement, dated November 13, 2007, by and
among the
Registrant, The Bank of New York, and The Bank of New York, London
Branch
(incorporated by reference to Exhibit 4.2 to the Current Report
on Form
8-K filed with the Securities and Exchange Commission on November
16,
2007).
|
|
|
|
|
|
4.4
|
|
Warrant
Instrument, dated November 13, 2007, by and between the Registrant
and ABN
AMRO Bank N.V. (incorporated by reference to Exhibit 4.3 to the
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
November 16, 2007).
|
|
|
|
|
|
4.5
|
|
Warrant
Agency Agreement, dated November 13, 2007, by and among the Registrant,
The Bank of New York and The Bank of New York, London Branch (incorporated
by reference to Exhibit 4.4 to the Current Report on Form 8-K filed
with
the Securities and Exchange Commission on November 16,
2007).
|
|
|
|
|
|
4.6
|
|
Registration
Rights Agreement, dated November 13, 2007, by and between the Registrant
and ABN AMRO Bank N.V. (incorporated by reference to Exhibit 4.5
to the
Current Report on Form 8-K filed with the Securities and Exchange
Commission on November 16, 2007).
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|
5.1
|
|
Opinion
of K&L Gates LLP regarding validity of common
stock.
|
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|
|
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|
5.2**
|
|
Opinion
of K&L Gates LLP regarding bonds and warrants.
|
|
|
|
|
|
8.1**
|
|
Opinion
of K&L Gates LLP.
|
|
|
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|
|
10.1
|
|
Form
of Subscription Agreement dated as of January 23, 2007 and February
9,
2007 (incorporated by reference from Exhibit 10.1 to Current Report
on
Form 8-K filed with the Securities and Exchange Commission on February
13,
2007).
|
|
|
|
|
|
10.1(a)
|
|
Form
of Amendment No. 1 dated as of July 20, 2007 to Subscription Agreement
(incorporated by reference from Exhibit 10.1(a) to Registration
Statement
on Form S-1 filed with the Securities and Exchange Commission on
December
18, 2007).
|
|
Exhibit
No.
|
|
Exhibit
Description
|
|
10.1(b)
|
|
Form
of Amendment No. 2 dated as of December 16, 2007 to Subscription
Agreement
(incorporated by reference from Exhibit 10.1(b) to Registration
Statement
on Form S-1 filed with the Securities and Exchange Commission on
December
18, 2007, 2008).
|
|
|
|
|
|
10.2
|
|
Form
of Agreement between Kwong Kai Shun and Investors of Series A Convertible
Preferred Stock (incorporated by reference from Exhibit 10.2 to
Registration Statement on Form S-1 filed with the Securities and
Exchange
Commission on September 26, 2007).
|
|
|
|
|
|
10.2(a)
|
|
Amendment
No. 1 to Agreement between Kwong Kai Shun and Investors of Series
A
Convertible Preferred Stock, dated June 30, 2007 (incorporated
by
reference to Exhibit 10.2(a) of the Registration Statement on Form
S-1
filed with the Securities and Exchange Commission on September
26,
2007).
|
|
|
|
|
|
10.2(b)
|
|
Form
of Amendment No. 2 to Agreement between Kwong Kai Shun and Investors
of
Series A Convertible Preferred Stock (incorporated by reference
to Exhibit
10.2(b) of the Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on December 18,
2007).
|
|
|
|
|
|
10.3
|
|
Subscription
Agreement, dated October 31, 2007, by and between the Registrant
and ABN
AMRO Bank N.V. (incorporated by reference to Exhibit 10.3 to the
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
November 16, 2007).
|
|
|
|
|
|
10.4
|
|
Registration
Rights Agreement dated January 23, 2007 entered into by and between
the
Registrant and Affiliates of WestPark Capital, Inc. (incorporated
by
reference to Exhibit 10.4 of the Registration Statement on Form
S-1 filed
with the Securities and Exchange Commission on December 18,
2007).
|
|
|
|
|
|
10.5
|
|
Employment
Agreement by and between King Wai Lin and the Registrant dated
April 21,
2008 (incorporated by reference to Exhibit 10.1 of the Current
Report on
Form 8-K filed with the Securities and Exchange Commission on April
24,
2008).
|
|
|
|
|
|
10.6
|
|
Confidential
Agreement by and between King Wai Lin and the Registrant dated
April 21,
2008 (incorporated by reference to Exhibit 10.2 of the Current
Report on
Form 8-K filed with the Securities and Exchange Commission on April
24,
2008).
|
|
|
|
|
|
12.1**
|
|
Computation
of Ratio of Earnings to Fixed Charges.
|
|
|
|
|
|
21.1
|
|
List
of Subsidiaries (incorporated by reference from Exhibit 21.1 to
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
January 29, 2007).
|
|
|
|
|
|
23.1**
|
|
Consent
of Dominic K. F. Chan & Co., Certified Public
Accountants.
|
|
|
|
|
|
23.2
|
|
Consent
of K&L Gates LLP (contained in Exhibits 5.1 and
5.2).
|
|
|
|
|
|
24.1**
|
|
Power
of Attorney (included on signature
page).
|
**
Previously filed.
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