As filed with the Securities and Exchange Commission on May 28, 2021.
Registration No. 333-
Delaware (State or Other Jurisdiction of Incorporation or Organization) | | | 20-2735523 (I.R.S. Employer Identification Number) |
Large accelerated filer ☐ | | | Accelerated filer ☐ | | | Non-accelerated filer ☒ | | | Smaller reporting company ☒ |
Emerging growth company ☐ | | | | | | |
Title of each Class of Securities to be Registered | | | Amount to be Registered(1) | | | Proposed Maximum Offering Price Per unit(1)(2) | | | Proposed Maximum Aggregate Offering Price(1)(3) | | | Amount of Registration Fee(1) |
Common Stock, $0.0000056 par value per share(4)(10) | | | — | | | — | | | — | | | — |
Preferred Stock, $0.0000056 par value per share(5)(10) | | | — | | | — | | | — | | | — |
Warrants(6)(10) | | | — | | | — | | | — | | | — |
Rights to purchase common stock, preferred stock or units(7)(9) | | | — | | | — | | | — | | | — |
Units(8)(9) | | | — | | | — | | | — | | | — |
TOTAL | | | $30,000,000 | | | | | $30,000,000(10) | | | $3,273.00(11) |
(1) | Not specified as to each class of securities to be registered pursuant to General Instruction II.D. to Form S-3. |
(2) | The proposed maximum offering price per unit will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder. |
(3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). |
(4) | Subject to note (10) below, there is being registered an indeterminate number of shares of common stock. Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan. |
(5) | Subject to note (10) below, there is being registered an indeterminate number of shares of preferred stock. Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan. |
(6) | Subject to note (10) below, there is being registered hereunder an indeterminate amount and number of warrants. The warrants may represent the right to purchase shares of common stock or shares of preferred stock. |
(7) | Subject to note (10) below, there is being registered an indeterminate number of rights that may represent a right to purchase common shares, preferred shares or units. |
(8) | Subject to note (10) below, there is being registered an indeterminate number of units. Each unit will be issued under a unit agreement and will represent an interest in a combination of one or more of the securities registered hereunder. |
(9) | Subject to note (10) below, this registration statement also covers an indeterminate amount of securities as may be issued in exchange for, or upon conversion or exercise of, as the case may be, the shares of preferred stock or warrants registered hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. No separate consideration will be received for any securities registered hereunder that are issued in exchange for, or upon conversion of, as the case may be, the shares of preferred stock or warrants. |
(10) | In no event will the aggregate initial offering price of all securities issued from time to time pursuant to the prospectus contained in this registration statement exceed $30,000,000 or the equivalent thereof in one or more foreign currencies or foreign currency units. Such amount represents the offering price of any shares of common stock or shares of preferred stock, the issue price of any warrants, the exercise price of any securities issuable upon the exercise of warrants, and the issue price of any securities issuable upon the exercise of rights. Any offering of securities denominated other than in United States dollars will be treated as the equivalent of United States dollars based on the exchange rate applicable to the purchase of such securities at the time of initial offering. The securities registered hereunder may be sold separately or as units with other securities registered hereunder. |
(11) | The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
• | reusing sapphire substrate in subsequent production runs; |
• | optimizing our epitaxial growth processes to create layers that efficiently convert electrical current into light; |
• | employing a copper alloy base manufacturing technology to improve our chip’s thermal and electrical performance; |
• | utilizing nanoscale surface engineering to improve usable light extraction; |
• | manufacturing extremely small footprint LEDs with optimized yield, ideal for Mini LED applications; |
• | developing a LED structure that generally consists of multiple epitaxial layers which are vertically-stacked on top of a copper alloy base; |
• | developing low cost Chip Scaled Packaging (CSP) technology; and |
• | developing multi-pixel Mini LED packages for commercial displays. |
• | subject to the rights of the holders of any series of Preferred Stock, no action shall be taken by the stockholders of the Corporation other than at an annual or special meeting of the stockholders, and no action shall be taken by the stockholders by written consent; |
• | the provisions in the Certificate of Incorporation may not be amended or repealed in any respect unless such amendment or repeal is approved by the affirmative vote of the record holders of at least a majority of the total voting power of all issued and outstanding shares entitled to vote thereon; |
• | an advance notice of stockholder nominations for the election of directors or of business to be brought by the stockholders before any meeting of the stockholders shall be given in the manner provided in the Corporation’s Bylaws; |
• | each holder of shares of any class or series of capital stock of the Corporation shall be entitled to one vote for each share held, and no stockholder will be permitted to cumulate votes, at any election of directors; |
• | removal of directors only with cause, and by the holders of a majority of the shares then entitled to vote at an election of directors, voting together as a single class; |
• | no reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office; |
• | the calling of special meetings of shareholders only by the president, a majority of the board of directors or the holders of not less than 25% of all votes entitled to be cast on the matters to be considered at such meeting; and |
• | the issuance of preferred stock by the board without further action by the shareholders. |
• | any merger or consolidation involving the corporation and the interested stockholder; |
• | any sale, transfer, lease, pledge, exchange, mortgage or other disposition involving the interested stockholder of 10% or more of the assets of the corporation; |
• | subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
• | subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or |
• | the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges, or other financial benefits provided by or through the corporation. |
• | the title of such securities; |
• | the offering price or prices and aggregate number of warrants offered; |
• | the currency or currencies for which the warrants may be purchased; |
• | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
• | if applicable, the date on and after which the warrants and the related securities will be separately transferable; |
• | if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
• | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which, and the currency in which, these shares may be purchased upon such exercise; |
• | the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
• | the terms of any rights to redeem or call the warrants; |
• | the terms of any rights to force the exercise of the warrants; |
• | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
• | the dates on which the right to exercise the warrants will commence and expire; |
• | the manner in which the warrant agreements and warrants may be modified; |
• | a discussion of any material or special United States federal income tax consequences of holding or exercising the warrants; |
• | the terms of the securities issuable upon exercise of the warrants; and |
• | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
• | the title and aggregate number of the rights; |
• | the subscription price or a formula for the determination of the subscription price for the rights and the currency or currencies in which the subscription price may be payable; |
• | if applicable, the designation and terms of the securities with which the rights are issued and the number of rights issued with each such security or each principal amount of such security; |
• | the number or a formula for the determination of the number of the rights issued to each stockholder; |
• | the extent to which the rights are transferable; |
• | in the case of rights to purchase common stock or preferred stock, the type of stock and number of shares of stock purchasable upon exercise of one right; |
• | the date on which the right to exercise the rights will commence, and the date on which the rights will expire (subject to any extension); |
• | if applicable, the minimum or maximum amount of the rights that may be exercised at any one time; |
• | the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities; |
• | if applicable, the procedures for adjusting the subscription price and number of shares of common stock or preferred stock purchasable upon the exercise of each right upon the occurrence of certain events, including stock splits, reverse stock splits, combinations, subdivisions or reclassifications of common stock or preferred stock; |
• | the effect on the rights of any merger, consolidation, sale or other disposition of our business; |
• | the terms of any rights to redeem or call the rights; |
• | information with respect to book-entry procedures, if any; |
• | the terms of the securities issuable upon exercise of the rights; |
• | if applicable, the material terms of any standby underwriting, backstop or other purchase arrangement that we may enter into in connection with the rights offering; |
• | if applicable, a discussion of certain U.S. federal income tax considerations; and |
• | any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights. |
• | the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
• | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
• | whether the units will be issued in fully registered or global form. |
• | at a fixed price or prices, which may be changed; |
• | at market prices prevailing at the time of sale; |
• | at prices related to such prevailing market prices; |
• | at varying prices determined at the time of sale; or |
• | at negotiated prices. |
• | on or through the facilities of The Nasdaq Capital Market or any other securities exchange or quotation or trading service on which such securities may be listed, quoted or traded at the time of sale; and/or |
• | to or through a market maker otherwise than on The Nasdaq Capital Market or such other securities exchanges or quotation or trading services. |
• | the name or names of any underwriters, dealers or agents participating in the offering, if any; |
• | the purchase price of the securities sold by us to any underwriter or dealer and the net proceeds we expect to receive from the offering; |
• | any option, under which underwriters may purchase additional securities from us; |
• | any agency fees or underwriting discounts or commissions and other items constituting agents’ or underwriters’ compensation; |
• | any public offering price; |
• | any discounts or concessions allowed or reallowed or paid to dealers; and |
• | any securities exchange or market on which the securities may be listed. |
1. | our Annual Report on Form 10-K for the fiscal year ended August 31, 2020, filed with the SEC on November 17, 2020; |
2. | our Quarterly Reports on Form 10-Q for the quarters ended November 30, 2020 and February 28, 2021, filed with the SEC on January 14, 2021 and April 12, 2021, respectively; |
3. | our Current Reports on Form 8-K filed with the SEC on September 4, 2020, September 28, 2020, October 5, 2020, January 21, 2021 and April 23, 2021, and |
4. | the description of our common stock, contained in our registration statement on Form 8-A, filed on December 2, 2010 pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
Item 14. | Other Expenses of Issuance and Distribution |
SEC registration fee | | | $3,273.00 |
Legal fees and expenses | | | (1) |
Accounting fees and expenses | | | (1) |
Transfer agent and registrar fees and expenses | | | (1) |
Stock exchange listing fees | | | (1) |
Printing, FINRA filing fee (if applicable) and miscellaneous expenses | | | (1) |
Total | | | (1) |
(1) | These fees will be dependent on the number and amount of securities offerings under this registration statement and, therefore, cannot be estimated at this time. In accordance with Rule 430B, additional information regarding estimated fees and expenses will be provided at the time information as to an offering is included in a prospectus supplement. |
Item 15. | Indemnification of Directors and Officers |
Item 16. | Exhibits |
Exhibit Number | | | Document |
1.1* | | | Form of Underwriting Agreement. |
| | ||
| | Amended and Restated Certification of Incorporation; incorporated by reference to 3.1(c) to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-168624), filed with the Securities and Exchange Commission on November 22, 2010. | |
| | ||
| | Certificate of Amendment of Amended and Restated Certificate of Incorporation; incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 15, 2016. | |
| | ||
| | Certificate of Amendment of Amended and Restated Certificate of Incorporation; incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 3, 2018. | |
| | ||
| | Amended and Restated Bylaws of the Registrant; incorporated by reference to Exhibit 3.2(b) to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-168624) filed with the Securities and Exchange Commission on November 22, 2010. | |
| | ||
| | Form of Common Stock Certificate; incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-168624) filed with the Securities and Exchange Commission on November 22, 2010. | |
| | ||
4.2* | | | Form of Preferred Stock Certificate. |
| | ||
4.3* | | | Form of Certificate of Designation of Preferred Stock. |
| | ||
4.4* | | | Form of Warrant. |
| | ||
4.5* | | | Form of Warrant Agreement. |
| | ||
4.6* | | | Form of Rights Certificate. |
| | ||
4.7* | | | Form of Unit. |
| | ||
4.8* | | | Form of Unit Agreement. |
| | ||
| | Opinion of Orrick, Herrington & Sutcliffe LLP (filed herewith). | |
| | ||
| | Consent of Opinion of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1 hereto). | |
| | ||
| | Consent of Consent of KCCW Accountancy Corp (filed herewith). | |
| | ||
| | Powers of Attorney (included as part of the signature page hereof). |
* | To be filed by amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934, as amended, and incorporated by reference herein. |
Item 17. | Undertakings |
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of this 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 and 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 |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this 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. |
(5) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act 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 date of the first 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 this registration statement or made in a document incorporated or deemed incorporated by reference into this registration statement or prospectus that is a part of this registration statement will, as to a purchaser with a time of contract sale prior to such effective date, supersede or modify any statement that was made in this registration statement or prospectus that was a part of this registration statement or made in any such document immediately prior to such effective date. |
(6) | 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, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(h) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted against the registrant 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 of 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. |
| | SEMILEDS CORPORATION | ||||
| | | | |||
| | By: | | | /s/ Trung Tri Doan | |
| | | | Trung Tri Doan Chairman and Chief Executive Officer |
Signature | | | Title | | | Date |
/s/ Trung Tri Doan | | | Chairman and Chief Executive Officer (Principal Executive Officer) | | | May 28, 2021 |
Trung Tri Doan | | |||||
| | | | |||
/s/ Christopher Lee | | | Chief Financial Officer (Principal Financial Officer and Accounting Officer) | | | May 28, 2021 |
Christopher Lee | | |||||
| | | | |||
/s/ Walter Michael Gough | | | Director | | | May 28, 2021 |
Walter Michael Gough | | | | | ||
| | | | |||
/s/ Edward K. Hsieh | | | Director | | | May 28, 2021 |
Dr. Edward Kuan Hsiung Hsieh | | | | | ||
| | | | |||
/s/ Roger Lee | | | Director | | | May 28, 2021 |
Roger Lee | | | | | ||
| | | | |||
/s/ Scott R. Simplot | | | Director | | | May 28, 2021 |
Scott R. Simplot | | | | |
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