Delaware
(State
or other jurisdiction of
incorporation
or
organization)
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35-2089848
(I.R.S.
Employer Identification No.)
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Large
accelerated filer
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¨
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Accelerated
filer
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¨
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Non-accelerated
filer
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¨ (Do not check if
a smaller reporting company)
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Smaller
reporting company
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þ
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Title of securities
to be registered
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Amount to be
registered(1)
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Proposed
maximum offering
price
per share(2)
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Proposed maximum
aggregate
offering price(2)
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Amount of
registration
fee(2)
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Common
Stock, par value $.001 per share
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900,000 | $ | 8.445 | $ | 7,600,500.00 | $ | 541.92 |
(1)
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Pursuant to Rules 416(a) and (b)
under the Securities Act of 1933, as amended (the “Securities Act”), this
registration statement shall also cover any additional shares of the
Registrant’s common stock that becomes issuable under the 2010 Omnibus
Long-Term Incentive Plan as set forth herein by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without receipt of consideration that increases the number of
outstanding shares of the Registrant’s common
stock.
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(2)
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Estimated solely for the purposes
of calculating the registration fee pursuant to Securities Act Rules
457(c) and 457(h). The proposed maximum offering price per
share, proposed maximum aggregate price and the amount of the registration
fee are based on the average of the high and low prices of the
registrant’s common stock reported on NASDAQ on August 30,
2010.
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Page
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item
1. Plan
Information.
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1
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Item
2. Registrant
Information and Employee Plan Annual Information.
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1
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3. Incorporation
of Documents by Reference.
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1
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Item
4. Description
of Securities.
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2
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Item
5. Interests
of Named Experts and Counsel.
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2
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Item
6. Indemnification
of Directors and Officers.
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2
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Item
7. Exemption
from Registration Claimed.
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3
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Item
8. Exhibits.
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3
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Item
9. Undertakings.
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3
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SIGNATURES
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Exhibit
4.1
Subaye, Inc. 2010 Omnibus Long-Term Incentive Plan.
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Exhibit
5.1 Opinion
of K&L Gates LLP.
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Exhibit
23.1 Consent
of K&L Gates LLP (included in the opinion filed as Exhibit
5.1).
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Exhibit
23.2 Consent
of Independent Registered Public Accounting Firm.
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1.
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The Registrant’s Annual Report on
Form 10-K for the fiscal year ended September 30, 2009, filed with the
Commission on December 29,
2009.
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2.
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The
Registrant’s Quarterly Reports on Form 10-Q for the three months ended
December 31, 2009, filed with the Commission on February 16, 2010; for the
three months ended March 31, 2010, filed with the Commission on May 17,
2010; for the three months ended June 30, 2010, filed with the Commission
on August 16, 2010; and on Form 10-Q/A for the three months ended December
31, 2009, filed with the Commission on August 25,
2010.
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3.
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The
Registrant’s Current Reports on Form 8-K, filed with the Commission on
October 21, 2009, October 23, 2009, November 2, 2009, November 6, 2009,
November 10, 2009, November 12, 2009, November 13, 2009, November 17,
2009, November 20, 2009, November 30, 2009, March 9, 2010, March 17, 2010,
April 19, 2010, May 5, 2010, June 3, 2010, June 30, 2010 and on Form
8-K/A, filed with the Commission on August 25,
2010.
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4.
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The
description of the Registrant's Common Stock contained in the Registrant's
registration statement on Form 8-A filed with the Commission on March 15,
2010, including any amendments or reports filed for the purpose of
updating that description.
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·
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indemnify officers and directors
against certain liabilities that may arise because of their status as
officers or directors;
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·
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advance expenses, as incurred, to
officers and directors in connection with a legal proceeding, subject to
limited exceptions; or
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·
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obtain directors’ and officers’
insurance.
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Exhibit
Numbers
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Description
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4.1
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Subaye,
Inc. 2010 Omnibus Long-Term Incentive Plan
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5.1
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Opinion
of K&L Gates LLP
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23.1
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Consent
of K&L Gates LLP (included in the opinion filed as Exhibit
5.1)
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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 (included on signature
page)
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(a)
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The undersigned Registrant hereby
undertakes:
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(1)
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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 the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 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 the registration
statement;
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(2)
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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.
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(3)
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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.
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(b)
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The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering
thereof.
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(c)
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Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
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SUBAYE,
INC.
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By:
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/s/ Zhiguang Cai
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Zhiguang
Cai
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Chief
Executive Officer
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Signature
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Title
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Date
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/s/ Zhiguang Cai
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Chief
Executive Officer and Director
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September
8, 2010
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Zhiguang
Cai
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(Principal Executive
Officer)
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/s/ James T.
Crane
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Chief
Financial Officer (Principal
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September
8, 2010
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James
T. Crane
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Financial
and Accounting Officer)
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/s/ Alan R. Lun
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Director
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September
8, 2010
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Alan
R. Lun
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/s/ Qimei Liu
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Director
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September
8, 2010
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Qimei
Liu
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/s/ Jinliu Deng
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Director
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September
8, 2010
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Jinliu
Deng
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/s/ Larry G.
Schafran
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Director
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September
8, 2010
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Larry
G. Schafran
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