As
filed with the Securities and Exchange Commission on July 23,
2009
Registration
No. 333-160190
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
(Amendment
No. 1)
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
SmartHeat Inc.
(Name of registrant as specified in
charter)
Nevada
(State or jurisdiction of incorporation
or organization)
98-0514768
(I.R.S. Employer Identification
No.)
A-1, 10, Street 7
Shenyang Economic and Technological Development
Zone
Shenyang, China 110027
+86 (24) 2519-7699
(Address and telephone number of
principal executive offices and principal place of business)
Mr.
Jun Wang
Chief
Executive Officer
SmartHeat
Inc.
A-1,
10, Street 7
Shenyang
Economic and Technological Development Zone
Shenyang,
China 110027
+86 (24) 2519-7699
(Name, address and telephone
number of agent for service)
Copies to:
Robert
Newman, Esq.
The
Newman Law Firm, PLLC
14
Wall Street, 20th
Floor
New
York, NY 10005
(212) 618-1968
Approximate date of
proposed sale to the public: From time to time, after this
registration statement becomes effective.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment
plans, please check the following box.
¨
If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, 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 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 delivery of the prospectus is
expected to be made pursuant to Rule 434, 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.
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Large accelerated
filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller reporting x
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CALCULATION OF REGISTRATION
FEE
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Title of Each
Class
of Securities
to be
Registered
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Amount to be
Registered(1)
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Proposed
Maximum
Aggregate
Offering Price
per Security(1)
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Proposed
Maximum
Aggregate Offering
Price(1)
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Amount
of Registration Fee(1)(2)
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Common Stock, par value $0.001
per share(3)
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—
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—
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—
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—
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Warrants(4)
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—
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—
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—
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—
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Rights(5)
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Units(6)
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—
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—
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—
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—
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TOTAL(7)
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$75,000,000
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—
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$75,000,000
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$4,185.00
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(1)
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Pursuant to General Instruction
II.D to Form S-3, the Amount to be Registered, Proposed Maximum Aggregate
Offering Price per Security and Proposed Maximum Aggregate Offering Price
have been omitted for each class of securities that are registered
hereby.
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(2)
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The registration fee for the
unallocated securities registered hereby has been calculated in accordance
with Rule 457(o) under the Securities Act of 1933, as amended, and
reflects the maximum offering price of securities that may be issued
rather than the principal amount of any securities that may be issued at a
discount.
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(3)
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An indeterminate number of shares
of common stock of SmartHeat Inc. are covered by this
Registration Statement.
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(4)
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An
indeterminate number of warrants of SmartHeat Inc., each representing the
right to purchase an indeterminate number of shares of common stock, each
of which are registered hereby, are covered by this Registration
Statement.
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(5)
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Rights evidencing rights to
purchase common
stock, warrants or units of SmartHeat Inc.
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(6)
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Each Unit consists of any
combination of two or more of the securities being registered
hereby.
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(7)
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Also registered hereby are such
additional and indeterminable number of securities as may be issuable due
to adjustments for changes resulting from stock dividends, stock splits
and similar changes as well as anti-dilution provisions applicable to the
warrants.
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The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until this Registration Statement shall become
effective on such date as the 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 it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
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Preliminary
Prospectus
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Subject
To Completion, datedJuly 23,
2009
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$75,000,000
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Common
Stock
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Warrants
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Rights
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Units
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SmartHeat Inc. may offer and sell from time to
time, in one or more series, any one of the following securities of our
company:
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common
stock;
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warrants
to purchase our common stock;
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rights
to purchase common stock, warrants
or units;
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units comprised of, or other
combinations of, the foregoing
securities.
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Each time our securities are offered, we
will provide a prospectus supplement containing more specific information about
the particular offering and attach it to this prospectus. The prospectus
supplements may also add, update or change information contained in this
prospectus. This
prospectus may not be used to offer or sell
securities without a prospectus
supplement which includes a description of the method and terms of this
offering.
Our
common stock is traded on the Nasdaq Global Market under the symbol “HEAT.” As
of June 1, 2009, the aggregate market value of our outstanding common stock held
by non-affiliates was approximately $83,902,710, based on 24,179,900 shares of
outstanding common stock, of which approximately 10,553,800 shares are held by
non-affiliates, and a per share price of $7.95 based on the closing sale price
of our common stock on June 1, 2009.
Investing in our securities involves a
high degree of risk. See the section entitled
“Risk
Factors” in the accompanying prospectus supplement and in
the documents we incorporate by reference in this
prospectus.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is
,
2009.
TABLE OF CONTENTS
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This prospectus is part of a
registration statement on Form S-3 that we filed with the Securities and
Exchange Commission utilizing a shelf registration process. Under this shelf
registration statement, we may, from time to time, sell any combination of the
securities referred to herein in one or more offerings for total gross proceeds of up to
$75,000,000. This
prospectus provides you with a general description of the securities we may
offer.
This prospectus provides you with some
of the general terms that may apply to an offering of our securities. Each time
we sell securities under this shelf registration we will provide a prospectus
supplement that will contain specific information about the terms of that
specific offering, including the number and price per security (or exercise
price) of the securities to be offered and sold in that offering and the
specific manner in which such securities may be offered. The prospectus
supplement may also add to, update or change any of the information contained in
this prospectus. If there is an inconsistency between the information in this
prospectus and a prospectus supplement, you should rely on the information in
the prospectus supplement. Before making an investment decision, it
is important for you to read and consider the information contained in this
prospectus and any prospectus supplement, together with the additional
information described under the heading “Where You Can Find More
Information.”
You should rely only on the information
provided in or incorporated by reference in this prospectus, any prospectus
supplement or documents to which we otherwise refer you. We have not authorized
anyone else to provide you with different information. We are not making an
offer of any securities in any jurisdiction where the offer is not permitted,
and this document may only be used where it is legal to sell the securities
described herein. You should not assume that the information in this prospectus,
any prospectus supplement or any document incorporated by reference is accurate
as of any date other than the date of the document in which such information is
contained or such other date referred to in such document, regardless of the
time of any sale or issuance of the securities. Our business, financial condition,
results of operations and prospects may have changed since that
date.
We
obtained statistical data, market data and other industry data and forecasts
used throughout, or incorporated by reference in, this prospectus from market
research, publicly available information and industry publications. We have not
sought the consent of the sources to refer to their reports appearing or
incorporated by reference in this prospectus. We have summarized certain
documents and other information in a manner we believe to be accurate, but we
refer you to the actual documents for a more complete understanding of what we
discuss in this prospectus. In making an investment decision, you must rely on
your own examination of our business and the terms of the offering, including
the merits and risks involved.
This prospectus contains, or
incorporates by reference, trademarks, tradenames, service marks and service
names of SmartHeat Inc. and
other companies.
1
Certain statements contained or
incorporated by reference in this prospectus or in any prospectus supplement
constitute “forward-looking statements” as that term is defined under the
Private Securities Litigation Reform Act of
1995 and releases issued by the SEC and within the meaning of Section 27A
of the Securities Act and Section 21E of the Securities Exchange Act of
1934, as amended, (the “Exchange Act”). The words “believe,” “expect,”
“anticipate,” “intend,” “estimate,” “plan,” “project” and other expressions
which are predictions of or indicate future events and trends and which do not
relate to historical matters identify forward-looking statements. Reliance
should not be placed on forward-looking statements because they involve known
and unknown risks, uncertainties and other factors, which may cause our actual
results, performance or achievements to differ materially from anticipated
future results, performance or achievements expressed or implied by such
forward-looking statements. These forward statements include
statements relating to:
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our
goals and strategies;
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our
expansion plans;
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our
future business development, financial conditions and results of
operations;
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the
expected growth of the market for PHE products and heat meters in
China;
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our
expectations regarding demand for our products;
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our
expectations regarding keeping and strengthening our relationships with
key customers;
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our
ability to stay abreast of market trends and technological
advances;
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our
ability to effectively protect our intellectual property rights and not
infringe on the intellectual property rights of others;
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our
ability to attract and retain quality employees;
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our
ability to pursue strategic acquisitions and alliances;
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competition
in our industry in China;
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general
economic and business conditions in the regions in which we sell our
products;
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relevant
government policies and regulations relating to our industry;
and
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market
acceptance of our products.
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Please see “Risk Factors” in any
accompanying prospectus supplement or in our Annual Reports on Form 10-K and on
Quarterly Reports on Form 10-Q for risks which could adversely impact our
business and financial performance. Moreover, new risks emerge from time to time
and it is not possible for our management to predict all risks, nor can we
assess the impact of all risks on our business or the extent to which any risk,
or combination of risks, may cause actual results to differ from those contained
in any forward-looking statements. All forward-looking statements included in
this prospectus are based on information available to us on the date of this
prospectus or the date of any prospectus supplement. Except to the extent
required by applicable laws or rules, we undertake no obligation to publicly
update or revise any forward-looking statement, whether as a result of new
information, future events or otherwise. All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by the cautionary statements contained
throughout this prospectus or in any prospectus supplement.
2
This
summary highlights selected information contained elsewhere in this prospectus
and does not contain all of the information you should consider in making your
investment decision. Before investing in the securities offered hereby, you
should read the entire prospectus and any supplement hereto carefully, including
the risk factors section as well as the financial statements and the notes to
the financial statements incorporated herein by reference.
In
this prospectus and any amendment or supplement hereto, unless otherwise
indicated, the terms “SmartHeat,” “we,” “us,” and “our” refer to SmartHeat
Inc.
Our
Company
We are a
leading provider of plate heat exchanger products to China's industrial,
residential and commercial markets. We design, manufacture, sell, and service
plate heat exchangers ("PHEs"), and plate heat exchanger units which combine
plate heat exchangers with various pumps, temperature sensors, valves, and
automated control systems ("PHE Units"), and heat meters for a broad range of
industries, including petroleum refining, petrochemicals, power generation,
metallurgy, food & beverage and chemical processing. We sell PHEs under the
Sondex brand and PHE Units designed by our engineers and assembled with Sondex
plates under our Taiyu brand name. We are an authorized dealer of Sondex PHEs
for the industrial and energy sectors in China.
We were
incorporated in the State of Nevada on August 4, 2006 under the name Pacific
Goldrim Resources, Inc. as an exploration stage corporation that intended to
engage in the exploration of silver, lead and zinc. On April 14, 2008 we changed
our name to SmartHeat Inc., and acquired all of the equity interests in Shenyang
Taiyu Machinery & Electronic Equipment Co, Ltd. ("Taiyu"), a privately held
company formed under the laws of the People's Republic of China ("China")
engaged in the design, manufacture, sale, and servicing of plate heat exchange
products in China. The acquisition of Taiyu's equity interests was accomplished
pursuant to the terms of a Share Exchange Agreement dated April 14, 2008 (the
"Share Exchange Agreement") by and among SmartHeat, Taiyu and all of the
shareholders of Taiyu (the "Taiyu Shareholders"). At the closing
under the Share Exchange Agreement, all of the equitable and legal rights, title
and interests in and to Taiyu's share capital in the amount of Yuan 25,000,000
were exchanged for an aggregate of 18,500,000 shares of SmartHeat common stock
(the "Share Exchange"). As a result of the Share Exchange, Taiyu became a
wholly-owned subsidiary of SmartHeat.
Prior to
our acquisition of Taiyu, we were in the development stage and had minimal
business operations. We had no interest in any property, but had the right to
conduct exploration activities on thirteen (13) mineral title cells covering
270,27 hectacres (667,85 acres) in the Slocan Mining Division of southeastern
British Columbia, Canada. In connection with the acquisition of Taiyu, the
Company transferred all of its pre-closing assets and liabilities (other than
the obligation to pay a $10,000 fee to the Company's audit firm) to a wholly
owned subsidiary, PGR Holdings, Inc., a Nevada corporation ("SplitCo"), under
the terms of an Agreement of Conveyance, Transfer and Assignment of Assets and
Assumption of Obligations dated April 14, 2008 (the "Transfer Agreement"). The
Company also sold all of the outstanding capital stock of Split Co to Jason
Schlombs (the former director and officer, and a major shareholder, of the
Company) pursuant to a Stock Purchase Agreement dated April 14, 2008 (the
"Split-Off Agreement") in exchange for the surrender of 2,500,000 shares of the
Company's common stock held by Mr. Schlombs (the "Split-Off').
Our
principal offices are located at A-1, 10, Street 7, Shenyang Economic and
Technological Development Zone, Shenyang, China
110027. Our telephone number is +86 (24)
2519-7699.
3
The Securities We May
Offer
We may offer and sell from time
to time up to an aggregate
of $75,000,000 of any of,
or combinations of, the following securities:
Common Stock
We may issue shares of our common stock.
Holders of common stock are entitled to receive ratably dividends if, as and
when dividends are declared from time to time by our board of directors out of
funds legally available for that purpose. Holders of common stock are entitled to
one vote per share. Holders of common stock have no cumulative voting rights in
the election of directors.
Warrants
We may
issue warrants for the purchase our common stock of our company. We may issue
warrants independently or together with other securities. Warrants sold with
other securities as a unit may be attached to or separate from the other
securities. To the extent the warrants are publicly-traded, we will issue
warrants under one or more warrant agreements between us and a warrant agent
that we will name in the applicable prospectus
supplement.
Rights
We may
issue rights to purchase our common stock,
warrants or units issued by our company. We may issue rights
independently or together with other securities. Rights sold with other
securities as a unit may be attached to or separate from the other securities
and may be (but shall not be required to be) publicly-listed
securities.
Units
We may also issue units comprised of one
or more of the other securities described in this prospectus in any combination.
Each unit will be issued so that the holder of the unit is also the holder of
each security included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included
security.
Prospectus
Supplement
We will describe the terms of any such
offering in a supplement to this prospectus. Any prospectus supplement may also
add, update, or change information contained in this prospectus. Such prospectus
supplement will contain the following information about the offered
securities:
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title and
amount;
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offering price, underwriting
discounts and commissions or agency fees, and our net
proceeds;
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any market listing and trading
symbol;
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names of lead or managing
underwriters or agents and description of underwriting or agency
arrangements; and
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the specific terms of the offered
securities.
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This prospectus may not be used to offer
or sell securities without a prospectus supplement which includes a description
of the method and terms of this offering.
4
Investing in our securities involves a
high degree of risk. The prospectus supplement relating to a particular offering
will contain a discussion of risks applicable to an investment in the securities
offered. Prior to making a decision about investing in our securities, you
should carefully consider the specific factors discussed under the heading “Risk
Factors” in the applicable prospectus supplement together with all of the other
information contained in the prospectus supplement or appearing or incorporated
by reference in this prospectus.
Except as otherwise provided in the
applicable prospectus supplement, we intend to use the net proceeds from these
sales for general corporate purposes including the expansion of our product
offerings, capital expenditures and to meet working capital needs. The amounts
and timing of the expenditures will depend on numerous factors, such
as growth in our markets, technological
advances and the competitive environment for our products.
General
The following description of our capital
stock (which includes a description of securities we may offer pursuant to the
registration statement of which this prospectus, as the same may be
supplemented, forms a part) does not purport to be complete and is subject to
and qualified in its entirety by our certificate of incorporation and bylaws and
by the applicable provisions of Nevada law.
Our authorized capital stock consists
solely of 75,000,000 shares of common stock. As of the date
of this prospectus, our outstanding capital stock consists of 24,179,900 shares of common stock, $0.001 par
value, held of record by approximately 77 stockholders and no shares of preferred
stock. Since some of our shares of common stock
are held in street or nominee name, it is believed there are a substantial
number of additional beneficial owners of our common stock. An additional 393,000 shares
are reserved for issuance upon the exercise of outstanding
warrants. The warrants are immediately exercisable, expire on the
third anniversary of their issuance and entitle their holders to purchase up to
393,000 shares of our common stock at an initial exercise price of $6.00 per
share. We also reserved an additional 20,000 shares for issuance upon the
exercise of outstanding stock options granted to two of our
directors. Each option vests in one-third increments on the first
three anniversaries of the grant date, entitles the holder to purchase 10,000
shares of our common stock at an exercise price of $4.60 per share and
expires on the fifth anniversary of the grant date.
We, directly or through agents, dealers
or underwriters designated from time to time, may offer, issue and sell,
together or separately, up
to $75,000,000 in the
aggregate of:
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common
stock;
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warrants to purchase our
securities;
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rights to purchase our common
stock, warrants or units;
or
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units comprised of, or other
combinations of, the foregoing
securities.
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The
common stock, the rights, the warrants, and the units are collectively referred
to in this prospectus as the “securities.” When a particular series of
securities is offered, a supplement to this prospectus will be delivered with
this prospectus, which will set forth the terms of the offering and sale of the
offered securities.
5
Common Stock
The holders of common stock are
entitled to one vote per share. Our Articles of Incorporation does
not provide for cumulative voting. The holders of common stock are
entitled to receive ratably such dividends, if any, as may be declared by our
board of directors out of legally available funds; however, the current policy
of our board of directors is to retain earnings, if any, for operations and
growth. Upon liquidation, dissolution or winding-up, the holders of
common stock are entitled to share ratably in all assets that are legally
available for distribution. The holders of common stock have no
preemptive, subscription, redemption or conversion rights.
Warrants
We may
issue warrants for the purchase of our common stock. Warrants may be issued
independently or together with our common stock and may be attached to or
separate from any offered securities. To the extent warrants we issue are to be
publicly-traded, each series of such warrants will be issued under a separate
warrant agreement to be entered into between us and a bank or trust company, as
warrant agent. The warrant agent will act solely as our agent in connection with
such warrants. The warrant agent will not have any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
warrants. This summary of certain provisions of the warrants is not complete.
For the terms of a particular series of warrants, you should refer to the
prospectus supplement for that series of warrants and the warrant agreement for
that particular series.
6
Rights
We may issue rights to purchase our
common stock,
warrants or units. The rights may or may not be transferable by the
persons purchasing or receiving the rights. In connection with any rights
offering, we may enter into a standby underwriting or other arrangement with one
or more underwriters or other persons pursuant to which such underwriters or
other persons would purchase any offered securities remaining unsubscribed for
after such rights offering. Each series of rights will be issued under a
separate rights agent agreement to be entered into between us and one or more
banks, trust companies or other financial institutions, as rights agent, that we
will name in the applicable prospectus supplement. The rights agent will act
solely as our agent in connection with the rights and will not assume any
obligation or relationship of agency or trust for or with any holders of rights
certificates or beneficial owners of rights.
The prospectus supplement relating to
any rights that we offer will include specific terms relating to the offering,
including, among other matters:
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the date of determining the
security holders entitled to the rights
distribution;
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the aggregate number of rights
issued and the aggregate amount of common stock,
warrants or units purchasable upon exercise of the
rights;
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the exercise
price;
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the conditions to completion of
the rights offering;
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the date on which the right to
exercise the rights will commence and the date on which the rights will
expire; and
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any applicable federal income tax
considerations.
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Each right would entitle the holder
of the rights to purchase for cash the principal amount of common
stock,
warrants or units at the exercise price set forth in the applicable
prospectus supplement. Rights may be exercised at any time up to the close of
business on the expiration date for the rights provided in the applicable
prospectus supplement. After the close of business on the expiration date, all
unexercised rights will become void.
If less than all of the rights issued in
any rights offering are exercised, we may offer any unsubscribed securities
directly to persons other than our security holders, to or through agents,
underwriters or dealers or through a combination of such methods, including
pursuant to standby arrangements, as described in the applicable prospectus
supplement.
Units
We may issue units comprised of one
or more of the other securities described in this prospectus or in any
prospectus supplement 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 the unit. The unit agreement under which a
unit is issued may provide that the securities included in the unit may not be
held or transferred separately, at any time or at any time before a specified
date or upon the occurrence of a specified event or
occurrence.
The applicable prospectus supplement
will describe:
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the designation and terms of
the units and of the securities comprising the units, including whether
and under what circumstances those securities may be held or transferred
separately;
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any unit agreement under which
the units will be
issued;
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any provisions for the
issuance, payment, settlement, transfer or exchange of the units or of the
securities comprising the units;
and
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whether the units will be
issued in fully registered or global
form.
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The preceding description and any
description of units in the applicable prospectus supplement does not purport to
be complete. For the particular series of units, you should refere to the
propectus supplement for that series of units, the unit agreement and, if
applicable, collateral arrangements and depositary arrangements relating to such
units.
Anti-Takeover Law
The Company is subject to the
Nevada anti-takeover laws regulating corporate
takeovers. These anti-takeover laws prevent Nevada corporations from
engaging in a merger, consolidation, sales of its stock or assets, and certain
other transactions with any stockholder, including all affiliates and associates
of the stockholder, who owns 10% or more of the corporation’s outstanding voting
stock, for three years following the date that the stockholder acquired 10% or
more of the corporation’s voting stock except in certain
situations.
7
In addition, the Company is subject to
the Nevada “control share” statute which prohibits
an acquiring person, under certain circumstances, from voting certain shares of
a target corporation’s stock after such acquiring person’s percentage of
ownership of such corporation’s stock crosses certain thresholds, unless the
target corporation’s disinterested stockholders approve the granting of voting
rights to such shares.
Transfer Agent and
Registrar
Interwest Transfer Company, Inc.
is the transfer agent and
registrar for our common stock.
Listing
Our common stock is quoted on the Nasdaq
Global Market under the trading symbol
“HEAT.”
We may sell the securities offered
through this prospectus: (i) to or through underwriters or dealers,
(ii) directly to purchasers, including our affiliates, (iii) through
agents, or (iv) through a combination of any these methods or any other
permissible method. The securities may be distributed at a fixed price or
prices, which may be changed, market prices prevailing at the time of sale,
prices related to the prevailing market prices, or negotiated prices. The
prospectus supplement used for any offering and sale of securities contemplated
hereunder will include the following information:
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the terms of the
offering;
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•
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the names of any underwriters or
agents;
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•
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the name or names of any managing
underwriter or underwriters;
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•
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the purchase price of the
securities;
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•
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the net proceeds from the sale of
the securities;
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•
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any delayed delivery
arrangements;
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•
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any underwriting discounts,
commissions and other items constituting underwriters’
compensation;
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any initial public offering
price;
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•
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any discounts or concessions
allowed or reallowed or paid to dealers;
and
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•
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any commissions paid to
agents.
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Sale Through Underwriters or
Dealers
If underwriters are used in an offering,
we will execute an underwriting agreement with such underwriters and will
specify the name of each underwriter and the terms of the transaction (including
any underwriting discounts and other terms constituting compensation of the
underwriters and any dealers) in a prospectus supplement. The securities may be
offered to the public either through underwriting syndicates represented by
managing underwriters or directly by one or more investment banking firms or
others, as designated. If an underwriting syndicate is used, the managing
underwriter(s) will be specified on the cover of the prospectus supplement. If
underwriters are used in the sale, the offered securities will be acquired by
the underwriters for their own accounts 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. Any public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time. Unless otherwise set forth in the
prospectus supplement, the obligations of the underwriters to purchase the
offered securities will be subject to conditions precedent, and the underwriters
will be obligated to purchase all of the offered securities, if any are
purchased.
8
We may grant to the underwriters options
to purchase additional securities to cover over-allotments, if any, at the
public offering price, with additional underwriting commissions or discounts, as
may be set forth in a related prospectus supplement. The terms of any
over-allotment option will be set forth in the prospectus supplement for those
securities.
If dealers are used in the sale of
securities offered through this prospectus, we will sell the securities to them
as principals. They may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. The prospectus
supplement will include the names of the dealers and the terms of the
transaction.
In connection with the sale of the
securities, underwriters, dealers or agents may receive compensation from us or
from purchasers of the securities for whom they act as agents, in the form of
discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those 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 the securities, and any institutional
investors or others that purchase securities directly for the purpose of resale
or distribution, may be deemed to be underwriters, and any discounts or
commissions received by them from us and any profit on the resale of the common
stock by them may be deemed to be underwriting discounts and commissions under
the Securities Act.
We may provide agents, underwriters and
other purchasers with indemnification against particular civil liabilities,
including liabilities under the Securities Act, or contribution with respect to
payments that the agents, underwriters or other purchasers may make with respect
to such liabilities. Agents and underwriters may engage in transactions with, or
perform services for, us in the ordinary course of business.
Unless otherwise specified in the
applicable prospectus supplement, any common stock sold pursuant to a prospectus
supplement will be eligible for listing on the Nasdaq Global Market, subject to
official notice of issuance. Any underwriters to whom securities are sold by us
for public offering and sale may make a market in the securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice.
In order to comply with the securities
laws of some states, if applicable, the securities offered pursuant to this
prospectus will be sold in those states only through registered or licensed
brokers or dealers. In addition, in some states securities may not be sold
unless they have been registered or qualified for sale in the applicable state
or an exemption from the registration or qualification requirement is available
and complied with.
Direct Sales and Sales Through
Agents
We may sell the securities offered
through this prospectus directly. In this case, no underwriters or agents would
be involved. Such securities may also be sold through agents designated from
time to time. The prospectus supplement will name any agent involved in the
offer or sale of the offered securities and will describe any commissions
payable to the agent. Unless otherwise indicated in the prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for
the period of its appointment.
We may sell the securities directly to
institutional investors or others who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any sale of those securities.
The terms of any such sales will be described in the prospectus
supplement.
Delayed Delivery
Contracts
If the prospectus supplement indicates,
we may authorize agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities at the public offering price under
delayed delivery contracts. These contracts would provide for payment and
delivery on a specified date in the future. The contracts would be subject only
to those conditions described in the prospectus supplement. The applicable
prospectus supplement will describe the commission payable for solicitation of
those contracts.
Market Making, Stabilization and Other
Transactions
Unless the applicable prospectus
supplement states otherwise, each series of offered securities will be a new
issue and will have no established trading market. We may elect to list any
series of offered securities on an exchange. Any underwriters that we use in the
sale of offered securities may make a market in such securities, but may
discontinue such market making at any time without notice. Therefore, we cannot
assure you that the securities will have a liquid trading
market.
9
Any underwriter may also engage in
stabilizing transactions, syndicate covering transactions and penalty bids in
accordance with Rule 104 under the Securities Exchange Act. Stabilizing
transactions involve bids to purchase the underlying security in the open market
for the purpose of pegging, fixing or maintaining the price of the securities.
Syndicate covering transactions involve purchases of the securities in the open
market after the distribution has been completed in order to cover syndicate
short positions.
Penalty bids permit the underwriters to
reclaim a selling concession from a syndicate member when the securities
originally sold by the syndicate member are purchased in a syndicate covering
transaction to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the
securities to be higher than it would be in the absence of the transactions. The
underwriters may, if they commence these transactions, discontinue them at any
time.
Derivative Transactions and
Hedging
We, the underwriters or other agents may
engage in derivative transactions involving the securities. These derivatives
may consist of short sale transactions and other hedging activities. The
underwriters or agents may acquire a long or short position in the securities,
hold or resell securities acquired and purchase options or futures on the
securities and other derivative instruments with returns linked to or related to
changes in the price of the securities. In order to facilitate these
derivative transactions, we may enter into security
lending or repurchase agreements with the underwriters or agents. The
underwriters or agents may effect the derivative transactions through sales of
the securities to the public, including short sales, or by lending the
securities in order to facilitate short sale transactions by others. The
underwriters or agents may also use the securities purchased or borrowed from us
or others (or, in the case of derivatives, securities received from us in
settlement of those derivatives) to directly or indirectly settle sales of the
securities or close out any related open borrowings of the
securities.
Electronic Auctions
We may also make sales through the
Internet or through other electronic means. Since we may from time to time elect
to offer securities directly to the public, with or without the involvement of
agents, underwriters or dealers, utilizing the Internet or other forms of
electronic bidding or ordering systems for the pricing and allocation of such
securities, you will want to pay particular attention to the description of that
system we will provide in a prospectus supplement.
Such electronic system may allow
bidders to directly participate, through electronic access to an auction site,
by submitting conditional offers to buy that are subject to acceptance by us,
and which may directly affect the price or other terms and conditions at which
such securities are sold. These bidding or ordering systems may present to each
bidder, on a so-called “real-time” basis, relevant information to assist in
making a bid, such as the clearing spread at which the offering would be sold,
based on the bids submitted, and whether a bidder’s individual bids would be
accepted, prorated or rejected. Of course, many pricing methods can and may
also be used.
Upon completion of such an electronic
auction process, securities will be allocated based on prices bid, terms of bid
or other factors. The final offering price at which securities would be sold and
the allocation of securities among bidders would be based in whole or in part on
the results of the Internet or other electronic bidding process or
auction.
General Information
Agents, underwriters, and dealers may be
entitled, under agreements entered into with us, to indemnification by us
against certain liabilities, including liabilities under the Securities Act. Our
agents, underwriters, and dealers, or their affiliates, may be customers of,
engage in transactions with or perform services for us, in the ordinary course
of business.
10
Unless otherwise indicated in the
applicable prospectus supplement, the validity of any securities being offered
in this prospectus will be passed upon for us by Holland & Hart LLP, Reno,
Nevada.
The consolidated financial statements
for the years ended December 31, 2007 and 2008 incorporated in this prospectus
by reference from the Company’s Annual Report on Form 10-K have been audited by
Goldman, Parks, Kurland & Mohidin, L.L.P., 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.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
All documents filed by the registrant
after the date of filing the initial registration statement on Form S-3 of which
this prospectus forms a part and prior to the effectiveness of such registration
statement pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 shall be deemed to be incorporated by reference into this
prospectus and to be part hereof from the date of filing of such documents. In
addition, the documents we are incorporating by reference as of the date hereof
are as follows:
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our Current Report on Form 8-K,
dated July 7, 2009, as filed with the SEC on July 7,
2009;
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our
Annual Report on Form 10-K for fiscal
year ended December 31, 2008,
as
filed with the SEC on March 18, 2009,
and as amended on April 3,
2009, May 5, 2009 and June 23, 2009;
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our Quarterly Report on Form
10-Q for fiscal quarter ended March 31, 2009, as filed with the SEC
on May 11, 2009, as amended on May 22, 2009 and June 23,
2009;
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our
Current Report on Form 8-K,
dated January 29, 2009, as filed with the SEC on January 30,
2009;
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our
Current Report on Form 8-K,
dated March 18, 2009, as filed with the SEC on March 18,
2009;
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our
Current Report on Form 8-K, dated May 10, as filed with the SEC
on May 11, 2009;
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our
Current Report on Form 8-K, dated May 27, as
filed with the SEC on May 29,
2009, as amended on June 16, 2009;
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the
description of our common stock contained in our Form 8-A filed on January 27,
2009 under
the caption “Description
of Common Stock”;
and
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all
documents that we file with the Securities and Exchange Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act
subsequent to the date of this registration statement and prior to the
filing of a post-effective amendment to this registration statement that
indicates that all securities offered under this prospectus have been
sold, or that deregisters all securities then remaining unsold, will be
deemed to be incorporated in this registration statement by reference and
to be a part hereof from the date of filing of such
documents.
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11
Any statement contained in a document we
incorporate by reference will be modified or superseded for all purposes to the
extent that a statement contained in this prospectus (or in any other document
that is subsequently filed with the Securities and Exchange Commission and
incorporated by reference) modifies or is contrary to that previous statement.
Any statement so modified or superseded will not be deemed a part of this
prospectus except as so modified or superseded.
You may request a copy of these filings
at no cost (other than exhibits unless such exhibits are specifically
incorporated by reference) by writing or telephoning us at the following address
and telephone number:
SmartHeat
Inc.
A-1,
10, Street 7
Shenyang
Economic and Technological Development Zone
Shenyang,
China 110027
+86 (24) 2519-7699
Attention: Chief Executive
Officer
You should rely only on the information
incorporated by reference or provided in this prospectus or any prospectus
supplement. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on the
front page of those documents.
We have filed a registration statement
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, with respect to the shares of our common stock offered by this
prospectus. This prospectus is part of that registration statement and does not
contain all the information included in the registration
statement.
For further information with respect to
our common stock and us, you should refer to the registration statement, its
exhibits and the material incorporated by reference therein. Portions of the
exhibits have been omitted as permitted by the rules and regulations of the
Securities and Exchange Commission. Statements made in this prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete. In each instance, we refer you to the copy of the
contracts or other documents filed as an exhibit to the registration statement,
and these statements are hereby qualified in their entirety by reference to the
contract or document.
The
registration statement may be inspected and copied at the Public Reference Room
maintained by the Securities and Exchange Commission at 100 F Street, N.E.,
Washington, D.C. and the Regional Offices at the Commission located in the 175
West Jackson Boulevard, Suite 900, Chicago Illinois,, and at 3 World Financial
Center, Suite 400, New York, New York. Copies of those filings can be obtained
from the Commission’s Public Reference Room, 100 F Street, N.E., Washington,
D.C. 20549 at prescribed rates and may also be obtained from the web site that
the Securities and Exchange Commission maintains at http://www.sec.gov. You may
also call the Commission at 1-800-SEC-0330 for more information. We file annual,
quarterly and current reports and other information with the Securities and
Exchange Commission. You may read and copy any reports, statements or other
information on file at the Commission’s public reference room in Washington,
D.C. You can request copies of those documents upon payment of a duplicating
fee, by writing to the Securities and Exchange
Commission.
12
INDEMNIFICATION FOR SECURITIES LAW
VIOLATIONS
The
Nevada Revised Statutes provide that a director or officer is not individually
liable to the corporation or its shareholders or creditors for any damages as a
result of any act or failure to act in his capacity as a director or officer
unless it is proven that his act or failure to act constituted a breach of his
fiduciary duties as a director or officer and his breach of those duties
involved intentional misconduct, fraud or a knowing violation of law. The
Articles of Incorporation or an amendment thereto may, however, provide for
greater individual liability. Furthermore, directors may be jointly and
severally liable for the payment of certain distributions in violation of
Chapter 78 of the Nevada Revised Statutes.
This
provision is intended to afford directors and officers protection against and to
limit their potential liability for monetary damages resulting from suits
alleging a breach of the duty of care by a director or officer. As a consequence
of this provision, shareholders of our company will be unable to recover
monetary damages against directors or officers for action taken by them that may
constitute negligence or gross negligence in performance of their duties unless
such conduct meets the requirements of Nevada law to impose such liability. The
provision, however, does not alter the applicable standards governing a
director’s or officer’s fiduciary duty and does not eliminate or limit the right
of our company or any shareholder to obtain an injunction or any other type of
non-monetary relief in the event of a breach of fiduciary duty.
The
Nevada Revised Statutes also provide that under certain circumstances, a
corporation may indemnify any person for amounts incurred in connection with a
pending, threatened or completed action, suit or proceeding in which he is, or
is threatened to be made, a party by reason of his being a director, officer,
employee or agent of the corporation or serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, if such person (a) is not
liable for a breach of fiduciary duty involving intentional misconduct, fraud or
a knowing violation of law or such greater standard imposed by the corporation’s
articles of incorporation; or (b) acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Additionally, a
corporation may indemnify a director, officer, employee or agent with respect to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, if such person (a) is not liable
for a breach of fiduciary duty involving intentional misconduct, fraud or a
knowing violation of law or such greater standard imposed by the corporation’s
articles of incorporation; or (b) acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, however, indemnification may not be made for any claim, issue or
matter as to which such a person has been adjudged by a court to be liable to
the corporation or for amounts paid in settlement to the corporation, unless the
court determines that the person is fairly and reasonably entitled to indemnity
for such expenses as the court deems proper. To the extent that 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 above, or in
defense of any claim, issue or matter therein, the corporation shall indemnify
him against expenses, including attorneys’ fees, actually and reasonably
incurred by him in connection with the defense.
Our
By-Laws provide, among other things, that a director, officer, employee or agent
of the corporation will be indemnified against all expense, liability, and loss
(including attorneys’ fees, judgments, fines, taxes, penalties and amounts paid
or to be paid in settlement) reasonably incurred or suffered in connection with
any threatened, pending, or completed action suit, or proceeding, whether civil,
criminal, administrative, or investigative provided that he or she either is not
liable pursuant to Nevada Revised Statutes 78.138 (relating to liability of
directors and officers to the corporation in certain instances) or acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe that his or her conduct was unlawful.
However, insofar as indemnification for
liabilities arising under the Securities Act may be permitted to our directors,
officers, and controlling persons pursuant to the foregoing provisions or
otherwise, we have been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment of expenses incurred or paid by
a director, officer or controlling person in a successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, we will, unless in the
opinion of our counsel the matter has been settled by controlling precedent,
submit to the 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.
You should rely only
on the information contained in this prospectus. We have not authorized any
dealer, broker, salesperson or any other person to provide you with information
or to make any representations different from those contained in this prospectus
or incorporated herein by reference. The information contained in this
prospectus is accurate only as of the date of this prospectus, regardless of the
time of delivery of this prospectus or of any sale of the shares. This
prospectus does not constitute an offer or solicitation by anyone in any
jurisdiction in which such offer or solicitation is not authorized or in which
the person making such offer is not qualified to do so or to anyone to whom it
is unlawful to make such offer or solicitation.
13
$75,000,000
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Common
Stock
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Warrant
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Rights
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Units
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PROSPECTUS
,
2009
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
|
Item 14.
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Other Expenses of Issuance and
Distribution.
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The following table sets forth estimated
expenses expected to be incurred in connection with the issuance and
distribution of the securities being registered. All such expenses will be paid
by us. The amounts listed below are estimates subject to future
contingencies.
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Securities and Exchange Commission
Registration Fee
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$ | 4,185.00 | ||
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Legal Fees and
Expenses
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$ | 50,000.00 | ||
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Accounting Fees and
Expenses
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$ | 10,000.00 | ||
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FINRA Filing
Fee
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$ | 5,500.00 | ||
| Miscellaneous | $ | 10,000.00 | ||
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TOTAL
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$ | 79,686.00 |
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Item 15.
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Indemnification of Directors and
Officers.
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Our
By-Laws provide, among other things, that a director, officer, employee or agent
of the corporation will be indemnified against all expense, liability, and loss
(including attorneys’ fees, judgments, fines, taxes, penalties and amounts paid
or to be paid in settlement) reasonably incurred or suffered in connection with
any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative provided that he or she either
is not liable pursuant to Nevada Revised Statutes 78.138 (relating to liability
of directors and officers to the corporation in certain instances) or acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the corporation and, in the case of a criminal proceeding, had
no reasonable cause to believe that his or her conduct was
unlawful.
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Item 16.
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Exhibits.
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The following exhibits are filed with
this Registration statement.
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Exhibit
Number
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Description of
Document
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3.1
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Articles of
Incorporation of the Company. (1)
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3.2
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Amended and Restated
By-Laws adopted April 15, 2008. (2)
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3.3
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Specimen Stock
Certificate.(3)
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4.1
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Form of Rights Agreement, if
any (4)
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4.2
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Form of Unit Agreement, if any
(4)
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4.3
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Form
of Warrant Agreement, if any, including form of Warrant. (4)
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4.4
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Form
of Right Certificate.(4)
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5.1
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Opinion of Holland & Hart
LLP.
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10.1
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English
Translation of Employment Agreement between Taiyu and Jun Wang, dated
January 1, 2008 (Incorporated herein by reference to Exhibit 10.1 to the
Current Report on Form 8-K (Commission File No. 000-53052) filed on April
18, 2008)
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10.2
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English
Translation of Employment Agreement between Taiyu and Zhijuan Guo, dated
January 1, 2008 (Incorporated herein by reference to Exhibit 10.2 to the
Current Report on Form 8-K (Commission File No. 000-53052) filed on April
18, 2008)
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10.3
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Certificate
of Appointment by Sondex A/S of Taiyu as Authorized Dealer in China,
dated March 2006 and letter naming Taiyu as Dealer of North
China, dated May 5, 2006 (Incorporated herein by reference to Exhibit 10.3
to the Current Report on Form 8-K (Commission File No. 000-53052) filed on
April 18, 2008)
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II-1
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10.4
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Form of Purchase Order for with
Sondex A/S (Incorporated herein by reference to Exhibit 10.4 to the
Current Report on Form 8-K (Commission File No. 000-53052) filed on April
18, 2008)
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10.5
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English Translation of Sales
Contract between Taiyu and Dalkia (Jiamusi) Urban Heating Company Ltd, dated
June 18, 2007 (Incorporated herein by reference to Exhibit 10.5 to the
Current Report on Form 8-K (Commission File No. 000-53052) filed on April
18, 2008)
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10.6
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Form of Purchase Order
(Incorporated herein by reference to Exhibit 10.6 to the Current Report on
Form 8-K (Commission File No. 000-53052) filed on April 18,
2008)
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10.7
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English Translation of Loan
Agreement with Citibank (China) Co., Ltd., dated June 25, 2007
(Incorporated herein by reference to Exhibit 10.7 to the Current Report on
Form 8-K (Commission File No. 000-53052) filed on April 18,
2008)
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10.8
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English Translation of Loan
Agreement with China CITIC Bank, dated April 17, 2007 (Incorporated herein
by reference to Exhibit 10.8 to the Current Report on Form 8-K (Commission
File No. 000-53052) filed on April 18, 2008)
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10.9
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Resignation Letter from Jason
Schlombs, dated April 15, 2008 (Incorporated herein by reference to
Exhibit 10.9 to the Current Report on Form 8-K (Commission File No.
000-53052) filed on April 18, 2008)
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10.10
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Agreement of Conveyance, Transfer
and Assignment of Assets and Assumption of Obligations between SmartHeat
and Goldrim Holding, Inc., dated April 14, 2008 (Incorporated herein by
reference to Exhibit 10.10 to the Current Report on Form 8-K (Commission
File No. 000-53052) filed on April 18, 2008)
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10.11
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Stock Purchase Agreement between
Jason Schlombs and SmartHeat, dated April 14, 2008 (Incorporated herein by
reference to Exhibit 10.11 to the Current Report on Form 8-K (Commission
File No. 000-53052) filed on April 18, 2008)
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10.12
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Form
of Registration Rights Agreement in connection with Units sold in our
private placement offering completed in August 2008 (Incorporated herein
by reference to Exhibit 10.14 to the Current Report on Form 8-K
(Commission File No. 000-53052) filed on July 11,
2008)
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10.13
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English Translation of Share
Exchange Agreement dated September 25, 2008 between the Company and
Asialink (Far East) Limited (Incorporated by reference to Exhibit 10.13 of
Amendment No. 1 to SmartHeat's Registration Statement on Form S-1/A
(Commission File No. 333-154415), filed with the SEC on December
12, 2008)
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10.14
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English Translation of the Asset
Acquisition Agreement, dated May 27, 2009 by and between
Taiyu Machinery and Electrical Equipment Co., Ltd and Siping Beifang the Heat
Exchanger Manufacture Co.,
Ltd. (Incorporated
herein by reference to Exhibit 10.14 to the Current Report on Form 8-K
(Commission File No. 001-34246), filed with the SEC on May 29,
2009)
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10.15
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English Translation of the Amended
and Restated Asset Purchase Agreement, dated June 16, 2009, by and between
Taiyu Machinery and Electrical Equipment Co., Ltd and Siping Beifang the Heat
Exchanger Manufacture Co.,
Ltd.
(Incorporated herein by reference to Exhibit 10.15 to the
Current Report on Form 8-K/A (Commission File No. 001-34246), filed with
the SEC on June 16, 2009)
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23.1
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Consent of Holland & Hart LLP (included in Exhibit
5.1).
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|
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23.2
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Consent of Independent Registered
Public Accounting Firm.
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24.1
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Power of Attorney (Incorporated
herein by reference to Exhibit 24.1 to SmartHeat's Registration Statement
on Form S-3 (Commission File No. 333-160109 filed with the SEC on June 24,
2009)).
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(1)
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Incorporated
herein by reference to Exhibit 3.1 to the Company's Form SB-2
(Commission File No. 333-139649) filed on December 22,
2006.
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(2)
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Incorporated
herein by reference to Exhibit 3(ii) to the Current Report on Form 8-K
(Commission File No. 000-53052) filed on October 16,
2008.
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(3)
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Incorporated
by reference to Exhibit 4.1 of Amendment No. 2 to SmartHeat's Registration
Statement on Form S-1/A (Commission File No. 333-154415), filed with the
SEC on February 4, 2009).
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(4)
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If applicable, to be filed by
amendment or by a report filed under the Securities Exchange Act of 1934,
as amended, and incorporated herein by
reference.
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II-2
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Item 17.
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Undertakings.
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(a)
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The undersigned registrant hereby
undertakes:
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(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration
statement:
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(i)
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To include any prospectus required
by Section 10(a)(3) of the Securities Act of
1933;
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(ii)
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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 this registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration
statement; and
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(iii)
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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 this registration
statement;
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provided,
however, that subparagraphs
(i), (ii) and (iii) above shall not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in
the periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration statement, or is
contained in a prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by a
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
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(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 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 the prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
|
II-3
(5) That, for the purpose of determining
liability of the Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the undersigned
Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any to 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:
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(i)
|
Any preliminary prospectus or
prospectus of the undersigned Registrant relating to the offering required
to be filed pursuant to
Rule 424;
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(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;
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|
(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
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(iv)
|
Any other communication that is an
offer in the offering made by the undersigned Registrant to the
purchaser.
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(b) That, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering
thereof.
(c) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant pursuant to
existing provisions or arrangements whereby the Registrant may indemnify a
director, officer or controlling person of the Registrant against liabilities
arising under the Securities Act of 1933, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such
issue.
II-4
In
accordance with the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing this Registration Statement on Form S-3 and authorized
this Registration Statement to be signed on its behalf by the undersigned, in
Shenyang, China, on the date indicated below.
|
SMARTHEAT
INC.
|
||
|
Date:
July 23, 2009
|
By:
|
/s/ Jun Wang
|
|
Jun
Wang
|
||
|
Chief
Executive Officer (Principal Executive Officer)
|
||
|
Date:
July 23, 2009
|
By:
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/s/ Zhijuan
Guo
|
|
Zhijuan
Guo
|
||
|
Chief
Financial Officer (Principal Accounting
Officer)
|
In
accordance with the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed below by the following
persons on behalf of the registrant and in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
||
|
/s/ Jun Wang
|
Chairman
of the Board, President & Chief Executive Officer
|
July
23, 2009
|
||
|
Jun
Wang
|
||||
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/s/ Shijuan Guo
|
Chief
Financial Officer and Treasurer
|
July
23, 2009
|
||
|
Zhijuan
Guo
|
||||
|
*
|
Director
|
July
23, 2009
|
||
|
Frederick
Rittereiser
|
||||
|
*
|
Director
|
July
23, 2009
|
||
|
Arnold
Staloff
|
||||
|
*
|
Director
|
July
23, 2009
|
||
|
Weiguo
Wang
|
||||
|
*
|
Director
|
July
23, 2009
|
||
|
Wenbin
Lin
|
||||
|
*
By:
|
||||
|
/s/ Jung
Wang
|
July
23, 2009
|
|||
|
Jun
Wang
|
||||
|
Attorney in
Fact
|
II-5