As
filed with the Securities and Exchange Commission on May 12, 2009.
Registration No. 333-[·]
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
F-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
KongZhong
Corporation
(Exact
Name of Registrant as Specified in Its Charter)
Not
Applicable
(Translation
of Registrant’s Name into English)
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Cayman
Islands
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Not
applicable
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(State
or Other Jurisdiction of Incorporation or Organization)
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(I.R.S.
Employer Identification Number)
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35th
Floor, Tengda Plaza
No.
168 Xizhimenwai Street
Beijing
100044
People’s
Republic of China
(+86-10)
8857-6000
(Address
and telephone number of Registrant’s principal executive offices)
CT
Corporation System
111
Eighth Avenue
New
York, New York 10011
(+1-212) 894-8940
(Name,
address and telephone number of agent for service)
Copy
to:
Robert
Chu
Sullivan
& Cromwell LLP
Suite
501, Tower 1
China
World Trade Center
1
Jian Guo Men Wai Avenue
Beijing
100004
People’s
Republic of China
(+86-10)
5923-5900
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this Registration Statement.
If only
securities being registered on this Form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box. 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. o
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. o
If this
Form is a registration statement pursuant to General Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
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(2)
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Proposed maximum aggregate price per
unit(3)
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Proposed maximum aggregate offering
price(3)(4)
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Amount
of
registration
fee
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Ordinary
shares, par value US$0.0000005 per share(1)
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156,000,000
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US$7.10
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US$27,690,000
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US$1,545.10
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(1)
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The
ordinary shares may be represented by American depositary shares, each of
which represents 40 ordinary shares. American depositary shares issuable
on deposit of the ordinary shares have been registered pursuant to a
separate registration statement on Form F-6 (File No.
333-11628).
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(2)
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Represents
the maximum number of ordinary shares that the Registrant expects could be
issued upon conversion of an adjustable rate convertible senior note due
in 2014 with an aggregate principal amount of US$6,775,400, and exercise
of a warrant to purchase up to 80 million ordinary shares of the
Registrant. Pursuant to Rule 416(a) under the Securities Act of
1933, this Registration Statement shall be deemed to cover any additional
number of ordinary shares that may be issued from time to time upon
conversion of such note or exercise of such warrant as a result of stock
dividends, splits, subdivisions, reclassifications or combinations or a
merger, sale of substantially all of the Registrant’s assets or shares or
similar transactions that require the approval of the Registrant’s
shareholders or other transactions or series of transactions that
otherwise result in a change in control of the Registrant. No additional
consideration will be received for the issuance of such additional
ordinary shares, and, therefore, no registration fee is
required.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933, based on the average of the
high and low reported sales prices on the Nasdaq Global Select Market on
May 7, 2009.
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(4)
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Estimated
solely for the purpose of determining the amount of the registration fee
in accordance with Rule 457(o) under the Securities
Act of 1933.
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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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this preliminary prospectus is not complete and may be changed.
No person may sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This preliminary prospectus
is not an offer to sell these securities and is not soliciting an offer to buy
these securities in any jurisdiction where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED MAY 12, 2009
PROSPECTUS
156,000,000
ORDINARY SHARES
We issued
and sold an adjustable rate convertible senior note due in 2014 with an
aggregate principal amount of US$6,775,400, which we refer to as the “note,” and
a warrant to purchase up to 80 million of our ordinary shares, exercisable
within five years, which we refer to as the “warrant,” in a private transaction
on March 18, 2009. We may issue ordinary shares upon conversion of the note or
exercise of the warrant. The recipient of such ordinary shares, whom we refer to
as the “selling shareholder,” may use this prospectus to resell, from time to
time, the ordinary shares that we may issue to it upon conversion of the note or
exercise of the warrant.
The
registration of our ordinary shares covered by this prospectus does not
necessarily mean that the selling shareholder will convert the note or exercise
the warrant or that any of our ordinary shares received upon conversion of the
note or exercise of the warrant will be sold by the selling
shareholder.
We will
receive no proceeds from any issuance of the ordinary shares to the selling
shareholder upon conversion of the note. We will receive an aggregate amount
equal to US$10,000,000 (US$0.125 per ordinary share) upon exercise of the
warrant by the selling shareholder. We have agreed to pay the expenses relating
to the registration of our ordinary shares. The selling shareholder may, from
time to time, offer and sell the ordinary shares held by it directly or through
agents or broker-dealers on terms to be determined at the time of sale, as
described in more detail in this prospectus and any accompanying prospectus
supplements. We will receive no proceeds from any sale of such ordinary shares
by the selling shareholder.
Our
American depositary shares, or ADSs, are traded on the Nasdaq Global Select
Market under the symbol “KONG.” On May 11, 2009, the last reported
sale price of our ADSs was US$7.06 per ADS.
Our principal executive offices are
located at 35th Floor, Tengda Plaza, No. 168 Xizhimenwai Street, Beijing 100044,
People’s Republic of China, and our telephone number is (+86-10)
8857-6000.
Investing
in these securities involves certain risks. See “Risk Factors” on page
3.
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 May 12, 2009.
TABLE
OF CONTENTS
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Page
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Risk
Factors
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3
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About
this Prospectus
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3
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Forward-Looking
Statements
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3
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Offering
Statistics and Expected Time Table
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5
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Selling
Shareholder
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5
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Plan
of Distribution
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6
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Use
of Proceeds
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8
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Capitalization
and Indebtedness
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9
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Description
of Share Capital
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9
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Price
Range of American Depositary Shares
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20
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Material
Changes
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20
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Expenses
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20
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Where
You Can Find More Information
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21
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Incorporation
of Certain Information by Reference
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21
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Disclosure
of the SEC’s Position on Indemnification for Securities Act
Liabilities
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21
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Validity
of the Ordinary Shares
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22
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Experts
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22
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-2-
RISK
FACTORS
You
should carefully consider the risk factors incorporated by reference herein from
our most recent Annual Report on Form 20-F (File No. 000-50826) for the fiscal
year ended December 31, 2008, or our 2008 20-F, and other information contained
or incorporated by reference in this prospectus and any accompanying prospectus
supplements, as the same may be updated from time to time by our future filings
under the Securities Exchange Act of 1934, as amended, or the Exchange Act. For
more information, see “Where You Can Find More Information” in this
prospectus.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a shelf registration statement that we filed with the
Securities and Exchange Commission, or the SEC, using a “shelf” registration
process for the delayed offering and sale of securities pursuant to Rule 415
under the Securities Act of 1933, as amended, or the Securities Act. Under the
shelf process, the selling shareholder may, from time to time, sell the offered
securities described in this prospectus in one or more offerings. Additionally,
under the shelf process, in certain circumstances, we may provide a prospectus
supplement that will contain specific information about the terms of a
particular offering by the selling shareholder. We may also provide a prospectus
supplement to add, update or change information contained in this
prospectus.
This
prospectus and any accompanying prospectus supplements do not contain all of the
information included in the registration statement. We have omitted parts of the
registration statement in accordance with the rules and regulations of the SEC.
For further information, we refer you to the registration statement on Form F-3,
including its exhibits, of which this prospectus is a part. Statements contained
in this prospectus and any accompanying prospectus supplements about the
provisions or contents of any agreement or other document are not necessarily
complete. If the SEC rules and regulations require that an agreement or document
be filed as an exhibit to the registration statement, please see that agreement
or document for a complete description of these matters. You should not assume
that the information in this prospectus, any prospectus supplements or in any
documents incorporated herein or therein by reference is accurate as of any date
other than the date on the front of each of such documents.
You
should read both this prospectus and any prospectus supplements together with
the additional information described under the heading “Where You Can Find More
Information” in this prospectus.
You
should rely only on the information contained in this prospectus or incorporated
by reference in this prospectus and any prospectus supplements. We have not
authorized anyone to provide you with information different from that contained
in this prospectus. We are not making an offer to sell, or seeking offers to
buy, these securities in any jurisdictions where offers or sales are not
permitted.
Unless
otherwise noted or unless the context otherwise requires, all references to
“KongZhong,” “the company,” “our company,” “we,” “us” or “our” include KongZhong
Corporation and its subsidiaries and operating companies as a combined entity.
All references to and statements regarding China, or the People’s Republic of
China, or the PRC, in this prospectus do not apply to Hong Kong, Macau or
Taiwan. All references to “RMB” or “Renminbi” are to the legal currency of China
and all references to “US$” are to the legal currency of the United
States.
FORWARD-LOOKING
STATEMENTS
This prospectus, any accompanying
prospectus supplements and the documents incorporated by reference herein, may
contain forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. Such forward-looking
statements include, without limitation, statements that are not historical facts
relating to:
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our
financial performance and business
operations;
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our
ability to successfully execute our business strategies and
plans;
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-3-
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the
state of our relationship with telecommunications operators in the
PRC;
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our
dependence on the substance and timing of the billing systems of the
telecommunications operators in the PRC for our
performance;
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our
development and capital expenditure
plans;
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the
expected benefit and future prospects of our strategic alliances and
acquisitions, and our ability to cooperate with our alliance partners or
integrate acquired businesses;
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management
estimations with respect to revenues from our wireless value-added
services, or WVAS, mobile games and our wireless Internet
businesses;
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the
development of our latest product offerings, including but not limited to
offerings in our WVAS, mobile games and wireless Internet
businesses;
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the
development of the regulatory environment and changes in the policies or
guidelines of the PRC telecommunications
operators;
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the
effect of the restructuring of the telecommunications industry in the PRC
as announced by the Ministry of Industry and Information, or the MII
(which also refers to its predecessor, the Ministry of Information
Industry prior to the PRC government restructuring in March 2008), the
National Development and Reform Commission and the Ministry of Finance of
the PRC in May 2008; and
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competitive
pressures and future growth in the WVAS, mobile games, wireless Internet,
mobile advertising, telecommunications and related industries in the
PRC.
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The words
“forecast,” “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,”
“may,” “plan,” “seek,” “will,” “would” and similar expressions, as they relate
to us, are intended to identify a number of these forward-looking
statements.
These
forward-looking statements involve various risks and uncertainties. In addition,
these forward-looking statements reflect our current views with respect to
future events and are not a guarantee of future performance. Actual results may
differ materially from the information contained in the forward-looking
statements as a result of a number of factors, including, without limitation,
the risk factors set forth in “Item 3 — Key Information — Risk Factors” of our
2008 20-F and the following:
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any
changes in our relationship with telecommunications operators in the
PRC;
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any
changes in the regulatory regime or the policies for the PRC
telecommunications industry, including changes in the structure or
functions of the primary industry regulator, the MII, or its policies, or
the policies or other regulatory measures of other relevant government or
industry authorities relating to, among other matters, the granting and
approval of licenses, procedures for customers to access and subscribe to
WVAS or mobile games, restrictions on wireless or Internet content, or the
introduction of new technology platforms, products and
services;
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the
effects of competition on the demand for or the price of our products or
services;
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any
changes in customer demand or usage preference for our products and
services;
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any
changes in the telecommunications operators’ systems for billing users of
our WVAS and mobile games and remitting payments to
us;
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-4-
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any
changes in technologies related to telecommunications, WVAS, mobile games
or wireless Internet or applications based on such
technologies;
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any
changes in political, economic, legal and social conditions in the PRC,
including the PRC government’s specific policies with respect to foreign
investment and entry by foreign companies into the telecommunications,
WVAS, mobile games or wireless Internet market, economic growth,
inflation, foreign exchange or the availability of credit;
and
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changes
in population growth and gross domestic product growth, and the impact of
those changes on the demand for our
services.
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We do not
intend to update or otherwise revise the forward-looking statements in this
prospectus, whether as a result of new information, future events or otherwise.
Because of the risks, uncertainties and assumptions, the forward-looking events
and circumstances discussed in this prospectus might not occur in the way we
expect, or at all. You should not place undue reliance on any forward-looking
information.
OFFERING
STATISTICS AND EXPECTED TIME TABLE
We issued the note and the warrant to
Nokia Growth Partners II, L.P., or NGP on March 18, 2009. The note can be
converted into up to 76 million of our ordinary shares based on the current
conversion price, US$0.08915 per ordinary share. The warrant can be exercised
for up to 80 million of our ordinary shares. The number of ordinary shares that
may be issued upon conversion of the note and exercise of the warrant may be
subject to adjustments in the event of stock dividends, splits, subdivisions,
reclassifications or combinations or a merger, sale of substantially all of our
assets or shares or similar transactions that require the approval of our
shareholders or other transactions or series of transactions that otherwise
result in a change in control of our company.
Further information on the method and
expected time table for distribution is set forth under “Selling Shareholder”
and “Plan of Distribution” below.
SELLING
SHAREHOLDER
The note
and the warrant were originally issued and sold by us to NGP on March 18, 2009
in a transaction exempt from the registration requirements of the Securities Act
pursuant to Rule 506 of Regulation D thereunder. We may issue ordinary shares
from time to time upon conversion of the note or exercise of the warrant. In
such circumstances, NGP as well as any of its successors, including its
transferees, pledgees or donees or other successors, whom we also refer to as
the “selling shareholder,” may use this prospectus and any accompanying
prospectus supplements to resell, from time to time, the ordinary shares that
may be issued to it upon the conversion of the note or exercise of the
warrant.
The
following table sets forth the maximum number of our ordinary shares that we
expect could become beneficially owned and offered by the selling shareholder
pursuant to this prospectus should the selling shareholder fully convert the
note and exercise the warrant. The information is based on information provided
by or on behalf of the selling shareholder. Solely for purposes of determining
the number of ordinary shares covered by this Registration Statement, the number
of our ordinary shares shown in the table below issuable upon conversion of the
note is based upon the conversion of the full principal amount of the note held
by the selling shareholder at the current conversion price of US$0.08915. The
table also assumes exercise of the warrant. The conversion price of the note and
the number of ordinary shares issuable upon exercise of the warrant are subject
to adjustments. Accordingly, the number of our ordinary shares issuable upon the
conversion of the note or exercise of the warrant may increase or decrease from
time to time. Any changed information given to us by the selling shareholder
will be set forth in prospectus supplements or amendments to this prospectus if
and when necessary.
-5-
We have
prepared the table below based on information given to us by the selling
shareholder on or before May 11, 2009. Because the selling shareholder may
offer, pursuant to this prospectus, all or some portion of the ordinary shares
listed below, no estimate can be given as to the amount of ordinary shares that
will be held by the selling shareholder upon consummation of any sales. In
addition, the selling shareholder may have sold, transferred or otherwise
disposed of, in transactions exempt from registration requirements of the
Securities Act, some or all of the ordinary shares since the date as of which
such information was provided to us.
Based on
the information provided to us by the selling shareholder, the selling
shareholder has not had any material relationship with us or any of our
affiliates within the past three years, except that pursuant to the note and
warrant purchase agreement that we entered into with NGP on March 18, 2009, NGP
has the right to appoint, and has appointed, one representative to attend our
board meetings as a non-voting observer.
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Name
of Selling Shareholder
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Maximum
Number of Ordinary Shares Issuable upon Conversion of the Note and
Exercise of the Warrant
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Number
of Ordinary Shares That May Be Sold
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Percentage
of Ordinary Shares Outstanding(1)
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Nokia
Growth Partners II, L.P.(2)
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156,000,000 | 156,000,000 | 9.9 | % | ||||||||
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(1)
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Calculated
based on Rule 13d-3(d)(1)(i) under the Exchange Act, using 1,576,396,360
ordinary shares outstanding as of May 11, 2009. In calculating this
amount, we treated as outstanding the number of ordinary shares issuable
upon conversion of the note and exercise of the
warrant.
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(2)
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We
have been informed by the selling shareholder that N.G. Partners II,
L.L.C., the general partner of NGP, and John Gardner and Paul Asel, the
managing members of N.G. Partners II, L.L.C., may be deemed to have sole
voting and dispositive power over the ordinary shares that would be
beneficially owned by the selling shareholder upon conversion of the note
and/or exercise of the warrant.
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PLAN
OF DISTRIBUTION
The
selling shareholder and any of its successors may sell our ordinary shares
issuable upon conversion of the note and exercise of the warrant directly to
purchasers or through broker-dealers or agents, who may receive compensation in
the form of discounts, concessions or commissions from the selling shareholder
or the purchasers.
The
ordinary shares may be sold in one or more transactions at:
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fixed
prices;
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prevailing
market prices at the time of sale;
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prices
related to the prevailing market
prices;
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varying
prices determined at the time of sale;
or
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negotiated
prices.
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These
sales may be effected in transactions:
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on
any national securities exchange or quotation service on which our
ordinary shares may be listed or quoted at the time of sale, including the
Nasdaq Global Select Market;
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in
the over-the-counter market;
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otherwise
than on such exchanges or services or in the over-the-counter market,
including in transactions that are privately
negotiated;
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-6-
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through
the writing of options, whether the options are listed on an options
exchange or otherwise (including the issuance by the selling shareholder
of derivative securities);
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through
the settlement of short sales; or
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any
combination of the foregoing.
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These
transactions may include block transactions or crosses. Crosses are transactions
in which the same broker acts as agent on both sides of the trade. Neither we
nor the selling shareholder currently expects the method of distribution to take
the form of an underwritten offering.
In
connection with sales of the ordinary shares or otherwise, the selling
shareholder may (A) enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the ordinary
shares in the course of hedging positions they assume, (B) sell the ordinary
shares short and deliver the ordinary shares to close out short positions, (C)
loan or pledge the ordinary shares to broker-dealers or other financial
institutions that in turn may sell the ordinary shares or (D) enter into option
or other transactions with broker-dealers or other financial institutions that
require the delivery to the broker-dealer or other financial institution of the
ordinary shares, which the broker-dealer or other financial institution may
resell pursuant to this prospectus. The selling shareholder may also enter into
transactions in which a broker-dealer makes purchases of the ordinary shares as
a principal for resale for its own account or through other types of
transactions.
The
aggregate proceeds to the selling shareholder from the sale of the ordinary
shares offered by it hereby will be the purchase price of such ordinary shares
less discounts, concessions or commissions, if any. The selling shareholder
reserves the right to accept and, together with their agents from time to time,
to reject, in whole or in part, any proposed purchase of ordinary shares to be
made directly or through agents. We will not receive any of the proceeds from
such sale.
Our ADSs
are listed for trading on the Nasdaq Global Select Market under the symbol
“KONG.”
In order
to comply with the securities laws of some states, if applicable, our ordinary
shares may be sold in these jurisdictions only through registered or licensed
brokers or dealers.
The
selling shareholder and any broker-dealers or agents that participate in the
sale of our ordinary shares may be deemed to be “underwriters” within the
meaning of Section 2(11) of the Securities Act. Profits on the sale of our
ordinary shares by the selling shareholder and any discounts, concessions or
commissions received by any broker-dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act. Any selling
shareholder who is deemed to be an “underwriter” within the meaning of Section
2(11) of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act. To the extent the selling shareholder may be
deemed to be an “underwriter,” it may be subject to statutory liabilities,
including, but not limited to, Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Exchange Act.
The
selling shareholder and any other person participating in a distribution will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder. Regulation M of the Exchange Act may limit the timing of
purchases and sales of any of the securities by the selling shareholder and any
other persons. In addition, Regulation M may restrict the ability of any person
engaged in the distribution of the securities to engage in market-making
activities with respect to the particular securities being distributed for a
period of up to five business days before the distribution.
To our
knowledge, there are currently no plans, arrangements or understandings between
the selling shareholder and any underwriter, broker-dealer or agent regarding
the sale of our ordinary shares by the selling shareholder.
-7-
The
selling shareholder may decide not to sell any of our ordinary shares described
in this prospectus. There is no assurance that the selling shareholder will use
this prospectus to sell any or all of our ordinary shares. Any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 of the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus. In addition, the selling shareholder may transfer, devise or gift
the ordinary shares by other means not described in this
prospectus.
With
respect to a particular offering of our ordinary shares, to the extent required,
an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this prospectus is a part will
be prepared and will set forth the following information:
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the
ordinary shares to be offered and
sold;
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the
name(s) of the selling
shareholder(s);
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the
respective purchase prices and public offering prices and other material
terms of the offering;
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the
names of any participating agents, broker-dealers or underwriters;
and
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any
applicable discounts, concessions and commissions and other items
constituting compensation from the selling
shareholder.
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We will pay all of our expenses
incidental to the registration of the ordinary shares issuable upon conversion
of the note and exercise of the warrant, but the selling shareholder will be
responsible for payment of discounts, concessions and commissions and other fees
of underwriters, broker-dealers, agents and advisers, if any, in connection with
the sale of the ordinary shares.
Pursuant to the registration rights
agreement we entered into with NGP on March 18, 2009, each of us and NGP will be
indemnified by the other against certain liabilities, including certain
liabilities under the Securities Act, or will be entitled to contribution for
payments required to be made as a result of these liabilities.
Also pursuant to the registration
rights agreement, we may, in accordance with the terms of such agreement, delay
the filing or effectiveness of a registration statement, including its
amendments or prospectus supplements, or, prior to the pricing of any offering
of the ordinary shares pursuant to a registration statement, delay such offering
(or withdraw any registration statement that has been filed), if we determine in
our sole discretion that (i) proceeding with the offering would require us to
disclose material information that we would not otherwise be required to
disclose at that time and that the disclosure of such information would not be
in the best interests of us or our shareholders or (ii) that the registration or
offering to be delayed would, if not delayed, materially and adversely affect us
or materially interfere with, or jeopardize the success of, any pending or
proposed material transaction, including any debt or equity financing, any
acquisition or disposition, any recapitalization or reorganization or any other
transaction, whether due to commercial reasons, a desire to avoid premature
disclosure of information or any other reason. Any time we delay a filing, an
effective date or an offering pursuant to this provision of the registration
rights agreement, we will notify the selling shareholder of the commencement and
termination of such suspension period and any withdrawal of a registration
statement.
USE
OF PROCEEDS
The proceeds from the sale of the
ordinary shares offered by this prospectus are solely for the account of the
selling shareholder. Accordingly, we will not receive any of the proceeds from
the sale of the ordinary shares offered by this prospectus.
-8-
CAPITALIZATION
AND INDEBTEDNESS
The following table sets forth our
capitalization and indebtedness as of March 31, 2009:
|
|
·
|
on
an actual basis; and
|
|
|
·
|
on
a pro forma basis, to reflect full conversion of the note and exercise of
the warrant.
|
The information in this table should be
read in conjunction with “Selected Financial Data” and our consolidated
financial statements and related notes included in our 2008 20-F.
|
As
of March 31, 2009
|
||||||||
|
Actual
|
Pro
Forma
|
|||||||
|
(Unaudited)
|
||||||||
|
(In
thousands of
U.S.
dollars,
except
share
data)
|
||||||||
|
Long-term
liabilities:
|
||||||||
|
Convertible
notes
|
2,464,446 | - | ||||||
|
Total
long-term liabilities
|
- | - | ||||||
|
Shareholders’
equity:
|
||||||||
|
Ordinary
shares (US$0.0000005 par value; 1,000,000,000,000 shares authorized;
1,429,869,200 issued and outstanding as of March 31, 2009) (1,585,869,200
shares issued and outstanding on a pro forma basis as of March 31,
2009)(1)
|
710 | 788 | ||||||
|
Additional
paid-in capital
|
89,403,318 | 102,545,017 | ||||||
|
Warrant
|
677,331 | - | ||||||
|
Accumulated
other comprehensive income
|
23,131,644 | 23,131,644 | ||||||
|
Statutory
reserve
|
7,392,442 | 7,392,442 | ||||||
|
Retained
earnings
|
46,449,780 | 46,449,780 | ||||||
|
Total
shareholders’ equity
|
167,055,225 | 179,519,671 | ||||||
|
Total
capitalization
|
169,519,671 | 179,519,671 | ||||||
|
(1)
|
The
actual and pro forma numbers of ordinary shares issued and outstanding as
of March 31, 2009 included 9,472,840 shares that had been repurchased by
the company but not yet cancelled.
|
DESCRIPTION
OF SHARE CAPITAL
Set forth below is information
concerning our share capital and a brief summary of the material provisions of
our amended and restated memorandum of association, as adopted on June 11, 2004
and effective on July 9, 2004, or memorandum, and our amended and restated
articles of association, as adopted on June 11, 2004 and effective on July 9,
2004, and as amended by special resolution on September 6, 2005, or articles of
association, the material applicable laws of the Cayman Islands and certain
other applicable laws and regulations. You and your advisers should refer to the
text of our memorandum and articles of association and to the texts of
applicable laws and regulations for further information.
GENERAL
We were incorporated in the Cayman
Islands in May 2002 as Communication Over The Air Inc., an exempted limited
liability company, and we are governed by the Companies Law (2007 Revision) Cap.
22 of the Cayman Islands, or the Companies Law, and the common law of the Cayman
Islands. An exempted company under Cayman Islands law is a company that conducts
its business outside of the Cayman Islands, is exempted from certain
requirements of the Companies Law, including a filing of an annual return of its
shareholders with the Registrar of Companies, does not have to make its register
of shareholders open to inspection and may obtain an undertaking against the
imposition of any future taxation. Our shareholders who are non-residents of the
Cayman Islands may freely hold and vote their shares. In March 2004, we changed
our name to KongZhong Corporation. Our memorandum sets forth objects for which
the company was established. Those objects are unrestricted, and we have full
power and authority to carry out any object not prohibited by the Companies Law
or any other law of the Cayman Islands.
-9-
As of each of December 31, 2008 and the
date hereof, our authorized share capital consists of 1,000,000,000,000 ordinary
shares, par value US$0.0000005 per share. As of April 30, 2009, we had
1,429,869,200 ordinary shares issued and outstanding. Other than the 9,472,840
ordinary shares that had been repurchased by our company but not yet cancelled,
all of the outstanding ordinary shares are fully paid and non-assessable.
Certificates representing the ordinary shares are issued in registered
form.
As
of December 31, 2006, we had 1,384,523,600 ordinary shares issued and
outstanding. In 2007, we issued 38,632,520 ordinary shares upon exercise of
employee stock options granted under the KongZhong Corporation 2002 Equity
Incentive Plan, or the 2002 Plan. As of December 31, 2007, we had 1,423,156,120
ordinary shares issued and outstanding. In 2008, we repurchased 8,923,600
ordinary shares. See “— Share Repurchase.” In addition, we issued 20,000,000
ordinary shares in 2008 for share-based compensation under the 2002 Plan, and
the KongZhong Corporation 2006 Equity Incentive Plan, or the 2006 Plan. As a
result, we had 1,434,232,520 ordinary shares outstanding as of December 31,
2008. See “— Stock Options and Restricted Share Units.”
On March 16, 2009, our board of
directors approved written resolutions authorizing the issuance of the note and
the warrant, which together may be convertible into and exercisable for up to
156,000,000 of our ordinary shares, subject to certain adjustments.
Our 2002 Plan and 2006 Plan are
intended to provide incentives to our directors, officers and employees as well
as consultants and advisers of our company and its present or future parent
company or subsidiaries, or any related corporations.
KongZhong
Corporation 2002 Equity Incentive Plan
The 2002 Plan was approved by our
shareholders at a meeting held on June 6, 2002. Pursuant to the 2002 Plan, we
originally reserved a total of 70,000,000 ordinary shares for issuance under two
categories of options: incentive stock options, which may be granted to officers
and employees of our company and any present or future parent or subsidiary of
our company, or the related corporations, and non-qualified options, which may
be granted to any employee, officer, director, consultant or adviser of our
company and the related corporations. We increased the number of ordinary shares
reserved for issuance under the 2002 Plan to 105,000,000 on February 15,
2004, and to 137,000,000 on September 6, 2005. Both increases have been approved
by our shareholders.
As of
December 31, 2008, under the 2002 Plan, we had granted options to purchase an
aggregate of 236,090,280 ordinary shares, as adjusted by cancellations following
initial grants and our share split, of which options to purchase 128,694,160 had
lapsed and 16,749,360 were exercisable at exercise prices ranging from US$0.0025
to US$0.0875 per ordinary share. The exercise prices represent the fair market
values of the underlying ordinary shares on the dates the options were
granted.
During
2007, under the 2002 Plan, we granted options to purchase an aggregate of
23,800,000 ordinary shares, of which options to purchase 19,522,980 of our
ordinary shares lapsed and options to purchase 3,256,640 of our ordinary shares
were exercised. With respect to such options, the vesting schedule for the
incentive stock options provides for 25% of the options to vest on the first
anniversary of the date of the grant, and the remaining 75% to vest in 12 equal
quarterly installments beginning one calendar quarter after the date of such
anniversary. With respect to the options granted to our independent directors,
the options are vested in 12 equal quarterly installments beginning one calendar
quarter after the grant date.
-10-
During
2008, under the 2002 Plan, we granted options to purchase an aggregate of
50,950,280 ordinary shares, of which options to purchase 68,161,060 of our
ordinary shares lapsed and options to purchase 18,760 of our ordinary shares
were exercised. In October 2008, we cancelled all options granted between
February 2004 to November 2007 that were then outstanding and granted new
options at the then fair market price under the 2002 Plan. The new options would
vest in 16 equal quarterly tranches beginning one calendar quarter after the
date of the grant. For the other options granted in 2008, the vesting schedule
for the incentive stock options provides for 25% of the options to vest on the
first anniversary of the date of the grant, and the remaining 75% to vest in 12
equal quarterly tranches beginning one calendar quarter after the date of such
anniversary. With respect to the options granted to our independent directors,
the options are vested in 12 equal quarterly tranches beginning one calendar
quarter after the grant date.
The
expiration date for each option is ten years from the date of
grant.
KongZhong
Corporation 2006 Equity Incentive Plan
The 2006
Plan was approved by our shareholders at our annual general meeting on October
12, 2006. Pursuant to the 2006 Plan, we originally reserved a total of
40,000,000 ordinary shares for issuance in respect of stock options, restricted
share units and other forms of equity compensation. We increased the number of
ordinary shares reserved for issuance under the 2006 Plan to 180,000,000 on
December 18, 2008. This increase has been approved by our
shareholders.
As of
December 31, 2008, under the 2006 Plan, we had granted an aggregate of
141,880,000 restricted share units, as adjusted by cancellations following
initial grants, of which 7,670,000 had lapsed. During 2007, we granted
restricted share units covering 37,280,000 of our ordinary shares, restricted
share units covering 4,520,000 of our ordinary shares lapsed and restricted
share units covering 360,000 of our ordinary shares were exercised. During 2008,
we granted restricted share units covering 104,600,000 of our ordinary shares,
restricted share units covering 3,150,000 of our ordinary shares lapsed and
restricted share units covering 11,612,500 of our ordinary shares were
exercised.
With respect to the restricted share
units that we have granted to our employees, the vesting schedule provides for
25% of the restricted share units to vest on the first anniversary of the date
of the grant, and the remaining 75% to vest in 12 equal quarterly tranches
beginning one calendar quarter after the date of such anniversary. With respect
to the restricted share units granted to our independent directors and advisors,
the restricted share units vest in 12 equal quarterly tranches beginning one
calendar quarter after the grant date. The expiration date for each restricted
share unit is ten years from the date of grant.
Our board
administers the 2002 Plan and 2006 Plan and has wide discretion in awarding
stock options, restricted share units and other forms of equity compensation.
Subject to the provisions of the 2002 Plan and 2006 Plan, our board determines
who will be granted equity compensation, the type and timing of equity
compensation to be granted, the vesting schedule and other terms and conditions
of the equity compensation, including the exercise price of the stock options.
On December 30, 2005, our board, following the recommendation of the
compensation committee, approved a resolution authorizing our chief executive
officer to grant up to 8,000,000 stock options to non-officer employees without
prior written approval by the compensation committee or the board.
Generally,
if an outstanding equity compensation award granted under the 2002 Plan and 2006
Plan has not vested by the date of termination of the grantee’s employment with
us, no further tranches of the grantee’s equity compensation award will become
exercisable following the date of such cessation of employment, and the
grantee’s already vested but unexercised equity compensation awards will
terminate after a period of 90 days from such cessation of
employment.
Our board
may terminate or amend the 2002 Plan and 2006 Plan at any time; provided,
however, that our board must seek our shareholders’ approval with respect to
certain major modifications to the 2002 Plan and 2006 Plan, and, if such
amendment or termination would adversely affect the rights of a grantee under
any option granted, the approval of such grantee would be required. Without
further action by our board, the 2002 Plan will terminate on June 6, 2012 and
the 2006 Plan will terminate on October 11, 2016.
-11-
The 2002
Plan and 2006 Plan provide for acceleration of awards upon the occurrence of
certain consolidations, mergers, acquisitions or sale of all or substantially
all assets or shares of our company. In any such case, our board shall take,
among others, one or more of the following actions: accelerate the date of
exercise of such options or any tranche of such options, provide a fixed period
of time that the grantees must exercise such options or terminate all options in
exchange for cash payment.
The
following table sets forth information on stock options and restricted share
units that have been granted and are outstanding as of December 31, 2008,
pursuant to the 2002 Plan and the 2006 Plan.
|
Ordinary
shares underlying options
|
Restricted
Share Units
|
||||||||||||||||||||||||
|
Name
of grantee
|
2008
option grants
|
Pre-2008
option grants
|
Expiration
date
|
Exercise
price
per
share
(U.S.
dollars) (1)
|
2008
grants
|
Pre-2008
grants
|
Expiration
date
|
||||||||||||||||||
|
Directors
and Senior Officers
|
|||||||||||||||||||||||||
|
Leilei
Wang
|
— | — | — | — | 48,000,000 | (2) | — |
Dec.
18, 2018
|
|||||||||||||||||
|
Xin
Wang
|
— | — | — | — | 42,400,000 | (3) | — |
Dec.
18, 2018
|
|||||||||||||||||
|
Xiaoxin
Chen
|
— | — | — | — | 440,000 | — |
Sep.
15, 2018
|
||||||||||||||||||
|
Xiaolong
Li
|
— | — | — | — | 480,000 | — |
Oct.
19, 2018
|
||||||||||||||||||
|
Hope
Ni
|
— | — | — | — | — | 200,000 | (4) |
Feb.
13, 2017
|
|||||||||||||||||
|
Charlie
Y. Shi
|
— | — | — | — | 1,240,000 | (5) | — |
Oct.
19, 2018
|
|||||||||||||||||
|
Hanhui
Sun
|
2,000,000 | (6) | — |
Oct.
23, 2018
|
0.07025
|
— | 2,625,000 | (7) |
Feb.
13, 2017
to
Nov.
11, 2017
|
||||||||||||||||
|
Other
employees (comprising 140 individuals)
|
45,055,280 | 12,479,360 |
June
30, 2012
to
Dec.
18, 2018
|
0.0025
to
0.0875
|
12,000,000 | (8) | 14,852,500 | (8) |
Feb.
13, 2017
to
Dec.
18, 2018
|
||||||||||||||||
|
Total
|
47,055,280 | 12,479,360 | 104,560,000 | 17,677,500 | |||||||||||||||||||||
|
(1)
|
The
exercise price per share of options granted represents the fair market
value of the underlying ordinary shares on the date the options were
granted.
|
|
(2)
|
Leilei
Wang was granted 48,000,000 restricted share units on December 19, 2008,
of which 25% will vest on December 19, 2009, and the remaining 75% will
vest in 12 equal tranches beginning from March 19, 2010 and continuing at
the end of each subsequent three-month period. As of December 31, 2008, no
restricted share units were vested.
|
|
(3)
|
Xin
Wang was granted 42,400,000 restricted share units on December 19, 2008,
of which 25% will vest on December 19, 2009, and the remaining 75% will
vest in 12 equal tranches beginning from March 19, 2010 and continuing at
the end of each subsequent three-month period. As of December 31, 2008, no
restricted share units were vested.
|
|
(4)
|
Hope
Ni was granted 480,000 restricted share units on February 14, 2007, which
vest in 12 equal tranches beginning on May 14, 2007 and continuing at the
end of each subsequent three-month period. As of December 31, 2008,
280,000 restricted share units were
vested.
|
|
(5)
|
Charlie
Y. Shi was granted 480,000 restricted share units on February 14, 2007,
which vest in 12 equal tranches beginning on May 14, 2007 and continuing
at the end of each subsequent three-month period. When he resigned as an
Independent Director in October 2008, his 204,000 unvested restricted
shares were immediately cancelled. Charlie Shi was appointed as an advisor
of our company and granted 1,240,000 restricted share units on October 20,
2008, which vest in 12 equal tranches beginning on October 20, 2009 and
continuing at the end of each subsequent three-month period. As of
December 31, 2008, no such restricted share units were
vested.
|
|
(6)
|
Hanhui
Sun resigned as the Chief Financial Officer of our company in February
2009 but is staying on with our company until April 30, 2009 for
transition. Hanhui Sun was granted 2,000,000 options on October 24, 2008,
which vest in 16 equal tranches beginning on January 24, 2009 and
continuing at the end of each subsequent three-month period. His unvested
options will be cancelled when he leaves our company and his vested but
unexercised options would expire on July 30,
2009.
|
|
(7)
|
Hanhui
Sun resigned as the Chief Financial Officer of our company in February
2009 but is staying on with our company until April 30, 2009 for
transition. Hanhui Sun was granted 2,000,000 restricted share units on
February 14, 2007, 25% of which vested on February 14, 2008 and the
remaining 75% of which vest in 12 equal tranches beginning from May 14,
2008 and continuing at the end of each subsequent three-month period.
Another 2,000,000 restricted share units were granted to Hanhui Sun on
November 12, 2007, 25% of which vested on November 12, 2008 and the
remaining 75% of which vest in 12 equal tranches beginning from February
12, 2009 and continuing at the end of each subsequent three-month period.
As of December 31, 2008, 1,375,000 restricted share units were vested. His
unvested restricted share units will be cancelled when he leaves our
company.
|
-12-
|
(8)
|
We
granted restricted share units covering 141,880,000 of our ordinary shares
on February 14, June 26, November 12, 2007 and December 19, 2008. As of
December 31, 2008, 7,670,000 were cancelled because the recipients left
our company and 122,237,500 remained
outstanding.
|
SOURCES
OF SHAREHOLDERS’ RIGHTS
Currently, the primary sources of our
shareholders’ rights are our memorandum and articles of association and the
Companies Law that, among other things, impose certain standards of conduct,
fairness and disclosure on us, our directors and our shareholders.
SHAREHOLDERS’
MEETINGS
An annual general meeting and any
extraordinary general meeting shall be called by not less than 20 days’
notice in writing. Notice of every general meeting shall be given to all of our
shareholders.
Notwithstanding that a meeting is
called by shorter notice than that mentioned above, it shall be deemed to have
been duly called, if it is so agreed (i) in the case of a meeting called as
an annual general meeting, by all of our shareholders entitled to attend and
vote at the meeting or their proxies; or (ii) in the case of any other
meeting, by a majority of the number of shareholders (or their proxies) having a
right to attend and vote at the meeting, together holding not less than 95% in
par value of the ordinary shares.
No business except the appointment of a
chairman shall be transacted at any general meeting unless a quorum is present
at the commencement of business.
Two shareholders present in person or
in proxy that represent not less than one-third of our total outstanding voting
shares will constitute a quorum.
A corporation shareholder shall be
deemed to be present in person if represented by its duly authorized
representative. Such duly authorized representative shall be entitled to
exercise the same powers on behalf of the corporation which he or she represents
as that corporation could exercise if it were our individual
shareholder.
ACTIONS
BY WRITTEN CONSENT
Our articles of association provide
that shareholders may take action by written resolution, provided that the
resolution is signed by all shareholders that would be entitled to vote with
respect to such action at a general meeting. Under Delaware law, which is
discussed for comparative purposes, shareholders may also take action by written
consent, provided that the consent is signed by holders of outstanding shares
having not less than the minimum number of votes that would be necessary to take
such action at a meeting at which all shares entitled to vote thereon were
present and voted.
VOTING
RIGHTS ATTACHING TO THE ORDINARY SHARES
Each ordinary share is entitled to one
vote on all matters upon which the ordinary shares are entitled to vote,
including the election of our directors. Voting at any meeting of shareholders
is by show of hands unless a poll is demanded. A poll may be demanded by the
chairman or any other member present in person or by proxy holding at least 10%
in nominal value of our total issued shares giving the right to attend and vote
at a meeting.
Share certificates registered in the
names of two or more persons are deliverable to the person named in the share
register, and if two or more such persons tender a vote, the vote of the person
whose name first appears in the share register will be accepted to the exclusion
of any other.
-13-
While there is nothing under the laws
of the Cayman Islands which specifically prohibits or restricts the creation of
cumulative voting rights for the election of directors of the company, unlike
the requirement under Delaware law that cumulative voting for the election of
directors is permitted only if expressly authorized in the certificate of
incorporation, it is not a concept that is accepted as a
common practice in the Cayman Islands, and indeed the company has made no
provisions in its articles of association to allow cumulative voting for such
elections.
PROTECTION
OF MINORITY SHAREHOLDERS
The Grand Court of the Cayman Islands
may, on the application of shareholders holding not less than one-fifth of our
shares in issue, appoint an inspector to examine into our affairs and to report
thereon in such manner as the Grand Court shall direct.
Any shareholder may petition the Grand
Court of the Cayman Islands, which may make a winding-up order, if the court is
of the opinion that it is just and equitable that we should be wound
up.
Claims against us by our shareholders
must, as a general rule, be based on the general laws of contract or tort
applicable in the Cayman Islands or their individual rights as shareholders as
established by our memorandum and articles of association or under the Companies
Law.
The Cayman Islands courts ordinarily
would be expected to follow English case law precedents which permit a minority
shareholder to commence a representative action against, or derivative actions
in our name to challenge (a) an act which is ultra vires or illegal,
(b) an act which constitutes a fraud against the minority and the
wrongdoers are themselves in control of us and (c) an irregularity in the
passing of a resolution that requires a qualified (or special)
majority.
PREEMPTION
RIGHTS
There are no preemption rights
applicable to the issue of new ordinary shares under either Cayman Islands law
or our memorandum and articles of association.
LIQUIDATION
RIGHTS
If we are to be liquidated, the
liquidator may, with the approval of the shareholders, divide among the
shareholders in cash or in kind the whole or any part of our assets, in a manner
proportionate to their shareholdings, and may vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the shareholders as the
liquidator, with the approval of the shareholders, thinks fit, provided that a
shareholder shall not be compelled to accept any shares or other assets which
would subject such shareholder to liability.
MODIFICATION
OF RIGHTS
Except with respect to share capital,
as described below, and the location of the registered office, alterations or
amendments to our memorandum and articles of association may only be made by
special resolution.
Subject to the Companies Law, all or
any of the special rights attached to any class, unless otherwise provided for
by the terms of issue of the shares of that class, may be varied, modified or
abrogated either with the consent in writing of the holders of not less than
three-fourths of the issued shares of that class or with the sanction of a
special resolution passed at a separate general meeting of the holders of the
shares of that class. The provisions of our articles of association relating to
general meetings shall apply mutatis mutandis to every
such separate general meeting, except that the quorum for the purposes of any
such separate general meeting shall be a person or persons together holding, or
representing by proxy, on the date of the relevant meeting not less than
one-third of the issued shares of that class, and that any holder of shares of
that class present in person or by proxy may demand a poll.
-14-
The special rights conferred upon the
holders of any class of shares shall not, unless otherwise expressly provided in
the rights attaching to or the terms of issue of such shares, be deemed to be
varied by the creation or issue of further shares ranking pari passu
therewith.
ALTERATION
OF CAPITAL
We may from time to time by ordinary
resolution:
|
|
·
|
increase
our share capital by any sum;
|
|
|
·
|
consolidate
and divide all or any of our share capital into shares of larger amount
than our existing shares;
|
|
|
·
|
cancel
any shares which at the date of the passing of the resolution have not
been taken or agreed to be taken by any person, and diminish the amount of
our share capital by the amount of the shares so cancelled, subject to the
provisions of the Companies Law;
and
|
|
|
·
|
sub-divide
our shares or any of them into shares of smaller amount than is fixed by
our memorandum, subject nevertheless to the Companies
Law.
|
We may, by special resolution, subject
to any conditions prescribed by the Companies Law, reduce our share capital,
share premium account or any capital redemption reserve in any manner authorized
by law.
An ordinary resolution is a resolution
passed by a simple majority of the shareholders voting in person or by proxy at
a general meeting. An ordinary resolution also includes a unanimous written
resolution. A special resolution is a resolution passed by a majority of not
less than two-thirds of the shareholders voting in person or by proxy at a
general meeting, of which notice specifying the intention to propose the
resolution as a special resolution has been duly given. A special resolution
also includes a unanimous written resolution.
TRANSFER
OF ORDINARY SHARES
Subject to the restrictions of our
articles of association, as applicable, any of our shareholders may transfer all
or any of his or her ordinary shares by an instrument of transfer in the usual
or common form or any other form approved by our board.
Our board of directors may, in its
absolute discretion, decline to register any transfer of any ordinary share
without assigning any reasons therefor.
If our directors refuse to register a
transfer, they shall, within two months of such refusal, send to the transferee
notice of such refusal.
The registration of transfers may be
suspended and the register closed at such times and for such periods as our
board of directors may from time to time determine; provided, however, that the
registration of transfers shall not be suspended nor the register closed for
more than 45 days in any year.
SHARE
REPURCHASE
Our articles of association provide
that our board of directors may from time to time cause us to repurchase our
ordinary shares and make payment therefor in any manner authorized by the
Companies Law, including out of capital, subject to the Companies Law and our
memorandum.
On October 27, 2008, our board of
directors authorized us to purchase our ADSs on the open market. Pursuant to
this authorization, the ADSs to be purchased shall not exceed 4,500,000 ADSs and
the aggregate price of ADSs to be purchased shall not exceed US$10,000,000. As
of December 31, 2008, we had purchased 223,090 ADSs, representing 8,923,600
ordinary shares. As of April 30, 2009, we had purchased 568,994
ADSs, representing 22,759,760 ordinary shares.
-15-
DIVIDENDS
Subject to the Companies Law and to our
articles of association, our board of directors may declare dividends (including
interim dividends) and distributions on shares. No dividend may be declared or
paid other than out of our profits and reserves lawfully available for
distribution, including share premium.
Our board of directors may deduct from
any dividend or other distribution payable to any shareholder all sums of money,
if any, presently payable by him or her to us on account of calls or
otherwise.
No dividend shall carry interest
against us.
Any dividend, interest or other sum
payable in cash to a holder of ordinary shares may be paid by check or warrant
sent through the post addressed to the registered address of the shareholder
entitled, or in the case of joint holders, to the registered address of the
person whose name stands first in our register of shareholders in respect of the
joint holding to such person and to such address as the holder or joint holders
may in writing direct. Every check or warrant so sent shall be made payable to
the order of the holder or, in the case of joint holders, to the order of the
holder whose name stands first on our register of shareholders in respect of
such ordinary shares, and shall be sent at his or their risk and the payment of
any such check or warrant by the bank on which it is drawn shall operate as a
good discharge to us in respect of the dividend and/or bonus represented
thereby, notwithstanding that it may subsequently appear that the same has been
stolen or that any endorsement thereon has been forged.
Any dividend unclaimed for six years
from the date of declaration of such dividend may be forfeited by the board of
directors and shall revert to us.
Our board of directors may, with the
sanction of the shareholders in general meeting, direct that any dividend be
satisfied wholly or in part by the distribution of specific assets of any kind,
and in particular of paid-up shares, debentures or warrants to subscribe to
securities of any other company, and where any difficulty arises in regard to
such distribution our directors may settle it as they think expedient, and in
particular may disregard fractional entitlements, round the same up or down or
provide that the same shall accrue to our benefit, and may fix the value for
distribution of such specific assets and may determine that cash payments shall
be made to any of our shareholders upon the footing of the value so fixed in
order to adjust the rights of all parties, and may vest any such specific assets
in trustees as may seem expedient to our board of directors.
UNTRACEABLE
SHAREHOLDERS
We are entitled to sell any ordinary
share of a shareholder who is untraceable, provided that:
|
|
(i)
|
all
checks or warrants, not being less than three in number, for any sums
payable in cash to the holder of such ordinary shares have remained
uncashed for a period of 12 years;
|
|
|
(ii)
|
we
have not during that time or before the expiry of the three-month period
referred to in paragraph (iv) below received any indication of the
whereabouts or existence of the shareholder or person entitled to such
ordinary shares by death, bankruptcy or operation of
law;
|
|
|
(iii)
|
during
the 12-year period, at least three dividends in respect of the ordinary
shares in question have become payable and no dividend during that period
has been claimed by the shareholder;
and
|
-16-
|
|
(iv)
|
upon
expiration of the 12-year period, we have caused an advertisement to be
published in newspapers (or, by electronic communication in the manner in
which notices may be served by us by electronic means as provided in our
articles of association), giving notice of its intention to sell these
ordinary shares, and a period of three months has elapsed since such
advertisement and Nasdaq has been notified of such
intention.
|
The net proceeds of any such sale shall
belong to us, and when we receive these net proceeds, we shall become indebted
to the former shareholder for an amount equal to such net proceeds.
DIFFERENCES
IN CORPORATE LAW
The Companies Law is modeled after that
of England but does not follow recent United Kingdom statutory enactments and
differs from laws applicable to United States corporations and their
shareholders. Set forth below is a summary of the significant differences
between the provisions of the Companies Law applicable to us and the laws
applicable to companies incorporated in the United States and their
shareholders.
Mergers
and Similar Arrangements
The Companies Law permits mergers
and consolidations between Cayman Islands companies and between Cayman Islands
companies and non-Cayman Islands companies. For these purposes, (a) “merger” means the merging
of two or more constituent companies and the vesting of their undertaking,
property and liabilities in one of such companies as the surviving company and
(b) a “consolidation” means the
combination of two or more constituent companies into a consolidated company and
the vesting of the undertaking, property and liabilities of such companies to
the consolidated company. In order to effect such a merger or consolidation, the
directors of each constituent company must approve a written plan of merger or
consolidation, or a Plan, which must then be authorized by either (a) a special
resolution of the shareholders of each constituent company voting together as
one class if the shares to be issued to each shareholder in the consolidated or
surviving company will have the same rights and economic value as the shares
held in the relevant constituent company or (b) a shareholder resolution of each
constituent company passed by a majority in number representing 75% in value of
the shareholders voting together as one class. The Plan must be filed with the
Registrar of Companies together with a declaration as to the solvency of the
consolidated or surviving company, a list of the assets and liabilities of each
constituent company and an undertaking that a copy of the certificate of merger
or consolidation will be given to the members and creditors of each constituent
company and published in the Cayman Islands Gazette. Dissenting shareholders
have the right to be paid the fair value of their shares (which, if not agreed
between the parties, will be determined by the Cayman Islands court) if they
follow the required procedures, subject to certain exceptions. Court approval is
not required for a merger or consolidation which is effected in compliance with
these statutory procedures.
In addition, there are statutory
provisions that facilitate the reconstruction and amalgamation of companies,
provided that the arrangement in question is approved by a majority in number of
each class of shareholders and creditors with whom the arrangement is to be
made, and who must in addition represent three-fourths in value of each such
class of shareholders or creditors, as the case may be, that are present and
voting either in person or by proxy at a meeting, or meetings convened for that
purpose. The convening of the meetings and subsequently the arrangement must
be sanctioned by the Grand Court of the Cayman Islands. While
a dissenting shareholder would have the right to express to the court the view
that the transaction ought not to be approved, the court can be expected to
approve the arrangement if it satisfies itself that:
|
|
·
|
the
statutory provisions as to majority vote have been complied
with;
|
|
|
·
|
the
shareholders have been fairly represented at the meeting in
question;
|
|
|
·
|
the
arrangement is such as a businessman would reasonably approve;
and
|
-17-
|
|
·
|
the
arrangement is not one that would more properly be sanctioned under some
other provision of the Companies
Law.
|
When a take-over offer is made and
accepted by holders of 90% of the shares within four months, the offeror may,
within a two-month period, require the holders of the remaining shares to
transfer such shares on the terms of the offer. An objection can be made to the
Grand Court of the Cayman Islands, but this is unlikely to succeed unless there
is evidence of fraud, bad faith or collusion. If the arrangement and
reconstruction is thus approved, the dissenting shareholder would have no rights
comparable to appraisal rights, which would otherwise ordinarily be available to
dissenting shareholders of U.S. corporations, providing rights to receive
payment in cash for the judicially determined value of the shares. We have not
issued preferred shares or adopted other “poison pill” measures that could be
used to prevent a takeover attempt as is commonly adopted by
U.S. companies. On September 6, 2005, our shareholders’ annual general
meeting voted to amend our articles of association to (i) set a three-year
term for directors, whose terms previously had not been limited by the articles
of association, (ii) create a board with three classes of directors, (iii)
authorize the board to appoint directors in addition to the existing directors,
up to a total of 11 directors, and (iv) allow shareholders to remove any
director during his term only for negligence or other reasonable cause. At that
same annual general meeting, the shareholders also voted to amend our articles
of association to authorize the board of directors to cause us to repurchase our
own shares from time to time. As a result of these measures, as well as other
measures we may adopt in the future, shareholders might be prevented from
realizing a potential premium on their shares as a result of a takeover
attempt.
Cayman Islands law does not require
that shareholders approve sales of all or substantially all of a company’s
assets as is commonly adopted by U.S. companies.
Shareholders’
Suits
Our Cayman Islands counsel is not aware
of any reported class action having been brought in a Cayman Islands court. In
principle, we will normally be the proper derivative plaintiff, and a derivative
action may not be brought by a minority shareholder. However, based on English
authorities, which are of persuasive authority in the Cayman Islands, exceptions
to the foregoing principle apply in circumstances in which:
|
|
·
|
a
company is acting or proposing to act illegally or ultra
vires;
|
|
|
·
|
the
act complained of, although not ultra vires, could be
effected only if authorized by more than a simple majority vote, which has
not been obtained; or
|
|
|
·
|
those
who control the company are perpetrating a “fraud on the
minority.”
|
Cayman Islands law does not limit the
extent to which a company’s articles of association may provide for
indemnification of officers and directors, except to the extent any such
provision may be held by the Cayman Islands courts to be contrary to public
policy, such as to provide indemnification against civil fraud or the
consequences of committing a crime. Our articles of association provide for our
directors and officers to be indemnified out of the assets of the company
against any liability incurred by him or her as a result of any act or failure
to act in carrying out his or her functions other than such liability (if any)
that he or she may incur by his own wilful neglect or default.
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling us pursuant to the foregoing provisions, we have
been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and, therefore, is
unenforceable.
-18-
Corporate
Governance
While the Companies Law does not
restrict transactions with directors, and common law requires only that
directors exercise a duty of care and owe a fiduciary duty to the companies for
which they serve, our articles of association restricts transactions between us
and our directors.
BOARD
OF DIRECTORS
We are managed by a board of directors
which currently consists of five members. At each annual general meeting,
one-third of our directors are subject to retirement from office. Retiring
directors are eligible for re-election. There are no membership qualifications
for directors. There are no share ownership qualifications for directors. The
compensation committee under our board will determine the remuneration to be
paid to the directors.
On September 6, 2005, our
shareholders’ annual general meeting voted to amend our articles of association
to (i) set a three-year term for directors, whose terms previously had not
been limited by the articles of association, (ii) create a board with three
classes of directors, (iii) authorize the board to appoint directors in addition
to the existing directors, up to a total of 11 directors and (iv) allow
shareholders to remove any director during his term only for negligence or other
reasonable cause.
Meetings of our board of directors may
be convened at any time deemed necessary by any members of our board of
directors. Advance notice of a meeting is not required if all our directors are
present or represented at the meeting concerned and consent to the holding of
such meeting.
A meeting of our board of directors
shall be competent to make lawful and binding decisions if any two members of
our board of directors are present or represented. At any meeting of our
directors, each director, be it by his or her presence or by his or her
alternate, is entitled to one vote. A director may vote in respect of any
contract or transaction in which he is interested; provided, however, that he or
she shall disclose the nature of such interest at or prior to its consideration
and any vote on that matter.
The directors may exercise all the
corporate powers to borrow money or issue debt and to mortgage our properties.
Questions arising at a meeting of our board of directors are required to be
decided by simple majority votes of the members of our board of directors
present or represented at the meeting. In the case of a tie vote, the chairman
of the meeting shall have a second or deciding vote. Our board of directors may
also pass resolutions without a meeting by unanimous written
consent.
Under Cayman Islands law, our directors
have a duty of loyalty and must act honestly and in good faith and in our best
interests. Our directors also have a duty to exercise the care, diligence, and
skills that a reasonably prudent person would exercise in comparable
circumstances. In fulfilling their duties to us, our directors must ensure
compliance with the memorandum and articles of association and the class rights
vested thereunder in the holders of the shares. A shareholder may, in certain
circumstances, have rights to damages if a duty owed by the directors is
breached.
INSPECTION
OF BOOKS AND RECORDS
Holders of our ordinary shares will
have no general right under Cayman Islands law to inspect or obtain copies of
our list of shareholders or our corporate records. However, we will provide our
shareholders with annual audited financial statements. See “Where You Can Find
More Information.”
AUDIT,
NOMINATIONS AND COMPENSATION COMMITTEES
Our Audit, Nominations and Compensation
Committees are comprised solely of independent directors.
-19-
PRICE
RANGE OF AMERICAN DEPOSITARY SHARES
Our ADSs, each representing 40 of our
ordinary shares, had been listed on the Nasdaq Global Market since July 9, 2004.
Effective January 1, 2008, our ADSs have been listed on the Nasdaq Global Select
Market. Our ADSs trade under the symbol “KONG.” The following table provides (1)
the annual high and low market prices for the four most recent full financial
years, (2) the high and low market prices for each full financial quarter for
the two most recent full financial years and the subsequent period and (3) the
high and low market prices each month for the most recent six
months.
|
Price
per ADS (US$)
|
||||||||
|
Annual
highs and lows
|
High
|
Low
|
||||||
|
2004(1)
|
11.97 | 5.33 | ||||||
|
2005
|
14.48 | 6.80 | ||||||
|
2006
|
15.04 | 5.56 | ||||||
|
2007
|
9.53 | 3.53 | ||||||
|
2008
|
6.89 | 2.44 | ||||||
|
Quarterly
highs and lows
|
||||||||
|
First
Quarter, 2007
|
9.53 | 6.68 | ||||||
|
Second
Quarter, 2007
|
7.28 | 4.73 | ||||||
|
Third
Quarter, 2007
|
8.53 | 3.53 | ||||||
|
Fourth
Quarter, 2007
|
8.46 | 4.49 | ||||||
|
First
Quarter, 2008
|
6.89 | 4.33 | ||||||
|
Second
Quarter, 2008
|
5.18 | 3.73 | ||||||
|
Third
Quarter, 2008
|
4.20 | 3.51 | ||||||
|
Fourth
Quarter, 2008
|
3.68 | 2.44 | ||||||
|
First
Quarter, 2009
|
5.28 | 3.47 | ||||||
|
Monthly
highs and lows
|
||||||||
|
November
2008
|
3.42 | 2.83 | ||||||
|
December
2008
|
3.68 | 3.23 | ||||||
|
January
2009
|
4.39 | 3.47 | ||||||
|
February
2009
|
5.03 | 3.85 | ||||||
|
March
2009
|
5.28 | 4.63 | ||||||
|
April
2009
|
6.64 | 5.06 | ||||||
|
May
2009 (through May 11)
|
7.08 | 6.43 | ||||||
|
(1)
|
Our
ADSs commenced trading on the Nasdaq Global Market on July 9,
2004.
|
MATERIAL
CHANGES
Not applicable.
EXPENSES
The following are the expenses
estimated to be incurred by us in connection with the issuance and distribution
of the securities registered under this Registration Statement:
|
SEC
registration fee
|
US$1,545.10
|
|
|
Legal
fees and expenses
|
US$125,000
|
|
|
Printers’
fees
|
US$599
|
|
|
Accounting
fees and expenses
|
US$12,000
|
|
|
Miscellaneous
|
US$848
|
|
|
Total
|
US$139,992.10
|
All amounts are estimated, except the SEC registration fee.
-20-
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form F-3
(File No. 333-[●]) under
the Securities Act with respect to the ordinary shares offered pursuant to this
prospectus, and a registration statement on Form F-6 (File No. 333-11628) under
the Securities Act with respect to our ADSs. This prospectus does not contain
all of the information in the registration statements and their exhibits. We
have omitted certain portions of the registration statement from this prospectus
in accordance with the rules and regulations of the SEC.
We file
annual reports on Form 20-F and submit other reports and information under cover
of Form 6-K with the SEC. You can inspect and copy the registration statements
and their exhibits as well as other reports and information at the public
reference room maintained by the SEC at 100 F Street, N.E., Washington, D.C.
20549. You can request copies of these documents upon payment of a duplicating
fee by writing to the SEC. You may call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference room. Additional
information may also be obtained over the Internet at the SEC’s website at www.sec.gov.
The address of our primary website is www.KongZhong.com,
and the address of our primary wireless Internet site is Kong.net.
The information on those websites is not a part of this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
incorporate by reference into this prospectus the documents listed below and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, including any filings after the date of this
prospectus, until this offering is completed. In addition, we will incorporate
by reference some future reports on Form 6-K, but only to the extent
specifically indicated in those reports. The information incorporated by
reference is an important part of this prospectus. Any statement in a document
incorporated by reference into this prospectus will be deemed to be modified or
superseded to the extent a statement contained in (1) this prospectus or
(2) any other subsequently filed document that is incorporated by reference
into this prospectus modifies or supersedes such statement.
|
|
·
|
Our
2008 20-F (File No. 000-50826), filed with the SEC on April 29, 2009;
and
|
|
|
·
|
The
description of our ADSs contained in our registration statement on
Form F-1 (File No. 333-116172), filed with the SEC
on June 4, 2004, as it may be amended from time to
time.
|
We will
provide to each person, including any beneficial owner, to whom a copy of this
prospectus is delivered, a copy of any or all of the information that we have
incorporated by reference into this prospectus. We will provide this information
upon written or oral request at no cost to the requester. Requests for these
documents should be directed to us at the following address:
KongZhong
Corporation
35th
Floor, Tengda Plaza
No. 168
Xizhimenwai Street
Beijing,
China 100044
Telephone:
(+86-10) 8857-6000.
DISCLOSURE
OF THE SEC’S POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling the registrant pursuant
to the foregoing provisions, the Registrant has been informed that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
-21-
VALIDITY
OF THE ORDINARY SHARES
The validity of the ordinary shares
issuable upon conversion of the note or exercise of the warrant under Cayman
Islands law will be passed upon for us by Maples and Calder.
EXPERTS
The consolidated financial statements
incorporated in this prospectus by reference to our 2008 20-F and the
effectiveness of the company’s internal control over financial reporting as of
December 31, 2008 have been audited by Deloitte Touche Tohmatsu CPA Ltd.,
an independent registered public accounting firm, as stated in their reports
which are incorporated herein by reference (which reports (1) express an
unqualified opinion and include an explanatory paragraph relating to the
adoption of Statement of Financial Accounting Standard No. 123 (revised 2004),
Share-Based Payment and the adoption of the recognition and measurement methods
under Financial Accounting Standards Board Interpretation No. 48, Accounting for
Uncertainty in Income Taxes - An Interpretation of FASB Statement No. 109 and
(2) express an unqualified opinion on the effectiveness of internal control
over financial reporting). Such consolidated financial statements have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
The offices of Deloitte Touche Tohmatsu
CPA Ltd. are located at 8/F, Deloitte Tower, The Towers, Oriental Plaza, 1 East
Chang An Avenue, Beijing 100738, the PRC.
-22-
PART
II − INFORMATION NOT REQUIRED IN PROSPECTUS
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Cayman Islands law does not limit the
extent to which a company’s articles of association may provide for
indemnification of officers and directors, except to the extent any such
provision may be held by the Cayman Islands courts to be contrary to public
policy, such as to provide indemnification against civil fraud or the
consequences of committing a crime. Our articles of association provide for our
directors and officers to be indemnified out of the assets of the company
against any liability incurred by him or her as a result of any act or failure
to act in carrying out his or her functions other than such liability (if any)
that he or she may incur by his or her own wilful neglect or
default.
EXHIBITS
|
Exhibit
Number
|
Description
|
||
|
4.1
|
(1)
|
Specimen
of share certificate.
|
|
|
4.2
|
(2)
|
Form
of Deposit Agreement among the registrant, Citibank, N.A., as depositary,
and Holders and Beneficial Holders of American Depositary Shares evidenced
by American Depositary Receipts thereunder, including the form of American
Depositary Receipt.
|
|
|
4.3
|
|
Registration
Rights Agreement, dated March 18, 2009, between KongZhong Corporation and
Nokia Growth Partners II, L.P.
|
|
|
5.1
|
|
Opinion
of Maples and Calder, Cayman Islands counsel to the Registrant, as to the
validity of the shares.
|
|
|
23.1
|
|
Consent
of King & Wood.
|
|
|
23.2
|
|
Consent
of Deloitte Touche Tohmatsu CPA Ltd.
|
|
|
23.3
|
|
Consent
of American Appraisal Limited.
|
|
|
23.4
|
|
Consent
of Maples and Calder (included in Exhibit 5.1).
|
|
|
24.1
|
|
Powers
of Attorney (contained in the signature pages to this Registration
Statement).
|
|
|
(1)
|
Previously
filed as an exhibit to the Registration Statement on Form F-1 (File No.
333-116172) of KongZhong Corporation filed with the SEC on June 4, 2004
and incorporated herein by reference
thereto.
|
|
(2)
|
Previously
filed as an exhibit to the Registration Statement on Form F-6 (File No.
333-116228) of KongZhong Corporation filed with the SEC on June 7, 2004
and incorporated herein by reference
thereto.
|
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 the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
II-1
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(i)(iii) do not apply if the
registration statement is on Form F-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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) To
file a post-effective amendment to this Registration Statement to include any
financial statements required by Item 8.A. of Form 20-F at the start
of any delayed offering or throughout a continuous offering; provided, that a
post-effective amendment need not be filed to provide financial statements and
information otherwise required by Section 10(a)(3) of the Exchange Act or
Item 3-19 of Regulation S-X if such financial statements and
information are contained in periodic reports filed with or furnished to the SEC
pursuant to Section 13 or Section 15(d) 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(5) That,
for the purpose of determining liability under the Securities Act 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 it is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or the prospectus that was part of the 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 to any purchaser in the initial distribution of the securities:
(a) The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer to 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-2
(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, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant, the
registrant has been advised that in the opinion of the SEC 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 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.
II-3
SIGNATURES
Pursuant
to 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 for
filing on Form F-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Beijing,
People’s Republic of China, on May 12, 2009.
|
KongZhong
Corporation
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|||
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By:
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/s/
LEILEI WANG
|
||
| Name: Leilei Wang | |||
| Title: Chairman and Chief Executive Officer | |||
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Leilei Wang and Jay Chang, and each of them, his or her
true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitutions, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement and any and
all related registration statements pursuant to Rule 462(b) of the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons on May 12, 2009 in the capacities
indicated.
|
Signature
|
Title
|
|
|
/s/
LEILEI WANG
|
Chairman
and Chief Executive Officer
|
|
|
Leilei
Wang
|
(principal
executive officer)
|
|
|
|
|
|
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/s/
NICK YANG
|
Vice
Chairman, President and Chief Technology Officer
|
|
|
Nick
Yang
|
|
|
|
|
|
|
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/s/
XIAOXIN CHEN
|
Director
|
|
|
Xiaoxin
Chen
|
|
|
|
|
|
|
|
/s/
XIAOLONG LI
|
Director
|
|
|
Xiaolong
Li
|
|
|
|
|
|
|
|
/s/
HOPE NI
|
Director
|
|
|
Hope
Ni
|
|
|
|
|
|
|
|
/s/
JAY CHANG
|
Chief
Financial Officer
|
|
|
Jay
Chang
|
|
|
|
|
|
|
|
/s/
XIN WANG
|
Chief
Operating Officer
|
|
|
Xin
Wang
|
|
|
|
|
|
|
|
/s/
TAI FAN
|
Chief
Investment Officer
|
|
|
Tai
Fan
|
|
SIGNATURE
OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant
to the Securities Act of 1933, the undersigned, the duly authorized
representative in the United States of KongZhong Corporation, has signed this
Registration Statement or amendment thereto in the city of Newark, state of
Delaware, on May 12, 2009.
|
Authorized
U.S. Representative
|
|||
|
By:
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/s/
GREG F. LAVELLE
|
||
| Name: Greg F. Lavelle | |||
| Title: Managing Director, Puglisi & Associates | |||
INDEX
TO EXHIBITS
|
Number
|
Description
of Exhibit
|
||
|
4.1
|
(1)
|
Specimen
of share certificate.
|
|
|
4.2
|
(2)
|
Form
of Deposit Agreement among the registrant, Citibank, N.A., as depositary,
and Holders and Beneficial Holders of American Depositary Shares evidenced
by American Depositary Receipts thereunder, including the form of American
Depositary Receipt.
|
|
|
4.3
|
|
Registration
Rights Agreement, dated March 18, 2009, between KongZhong Corporation and
Nokia Growth Partners II, L.P.
|
|
|
5.1
|
|
Opinion
of Maples and Calder, Cayman Islands counsel to the Registrant, as to the
validity of the shares.
|
|
|
23.1
|
|
Consent
of King & Wood.
|
|
|
23.2
|
|
Consent
of Deloitte Touche Tohmatsu CPA Ltd.
|
|
|
23.3
|
|
Consent
of American Appraisal Limited.
|
|
|
23.4
|
|
Consent
of Maples and Calder (included in Exhibit 5.1).
|
|
|
24.1
|
|
Powers
of Attorney (contained in the signature pages to this Registration
Statement).
|
|
|
(1)
|
Previously
filed as an exhibit to the Registration Statement on Form F-1 (File No.
333-116172) of KongZhong Corporation filed with the SEC on June 4, 2004
and incorporated herein by reference
thereto.
|
|
(2)
|
Previously
filed as an exhibit to the Registration Statement on Form F-6 (File No.
333-116228) of KongZhong Corporation filed with the SEC on June 7, 2004
and incorporated herein by reference
thereto.
|