As filed
with the Securities and Exchange Commission on May 8, 2009 Registration No.
_____________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
(Exact
name of registrant as specified in its charter)
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Florida
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88-
0404114
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(State
or other jurisdiction of incorporation or organization)
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I.R.S.
Employer Identification No.
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10
Huangcheng Road (N), Longkou, Shandong Province, PRC
(Address
of Principal Executive Offices)
Ling Wang
– Employment Agreement
(Full
title of the plan)
Corporation
Service Company
1201 Hays
Street
Tallahassee,
FL 32301
(Name
and address of agent for service)
(Telephone
number, including area code, of agent for service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer
o
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Accelerated
filer
o
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Non-accelerated
filer
o
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Smaller
reporting company
x
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CALCULATION
OF REGISTRATION FEE
TITLE
OF
SECURITIES
TO BE
REGISTERED
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AMOUNT
TO BE
REGISTERED(1)
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PROPOSED
MAXIMUM
OFFERING
PRICE
PER
SHARE(2)
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PROPOSED
MAXIMUM
AGGREGATE
OFFERING
PRICE
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AMOUNT
OF REGISTRATION FEE
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Class
A Common Stock
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2,000,000
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$
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0.16
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$
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320,000
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$
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17.86
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Total
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2,000,000
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$
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17.86
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_______________________________
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(1)
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Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended, this
Registration Statement covers an indeterminate number of securities to be
offered as a result of an adjustment from stock splits, stock dividends or
similar transactions.
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(2)
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Based
on the average of the high and low prices reported on NYSE Amex as of May
5, 2009 pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended.
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EXPLANATORY
NOTE
This
Registration Statement for New Dragon Asia Corp., a Florida corporation. (the
“Company”) contains two parts. The first part contains a re-offer prospectus
prepared in accordance with the requirements of Part I of Form S-3 (in
accordance with the General Instruction C to Form S-8) which covers reoffers and
resales of “control securities” (as such term is defined in General Instruction
C to Form S-8) of the Company. The reoffer prospectus relates to up to 2,000,000
shares of Class A Common Stock that have been issued to Ms. Ling Wang in
connection with her employment agreement dated as of April 1, 2009 with the
Company as the Company’s Chief Financial Officer (the “Employment Agreement”)
.
Pursuant
to the Employment Agreement, Ms. Wang was paid 2,000,000 shares of Class A
common stock, par value $0.0001 per share (the “Common Stock”). A
copy of the Employment Agreement is included as Exhibit 10.1 to this
Registration Statement.
The
second part of this Registration Statement contains information required
pursuant to Part II of Form S-8 and will be used for offers of shares of
Class A Common Stock of the Company that have been issued in connection
with the Employment Agreement.
PART
I
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ITEM
1.
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PLAN
INFORMATION.
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The
document(s) containing the information specified in Part I of Form S-8
will be sent or given to Ms. Wang pursuant to the terms of the Employment
Agreement as specified by Rule 428(b)(1) under the Securities Act. Such
documents are not being filed with the Securities and Exchange Commission, but
constitute, along with the documents incorporated by reference into this
Registration Statement, a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
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ITEM
2.
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REGISTRANT
INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.
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The
Company will furnish without charge to each person to whom the prospectus is
delivered, upon the written or oral request of such person, a copy of any and
all of the documents incorporated by reference in Item 3 of Part II of
this Registration Statement, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference to the information that is
incorporated). Those documents are incorporated by reference in the
Section 10(a) prospectus. Requests should be directed to 10 Huangcheng Road
(N), Longkou, Shandong Province, PRC, and our telephone number is (86 535)
8951-567.
Note
: The re-offer prospectus
referred to in the Explanatory Note follows this page.
REOFFER
PROSPECTUS
2,000,000
Shares of Class A Common Stock
This
Prospectus relates to shares (the “Shares”) of Class A Common Stock, par value
$0.0001 per share (“Common Stock”, of New Dragon Asia Corp., a Florida
corporation (the “Company”) which may be offered and sold from time to time by a
certain shareholder of the Company (the “Selling Shareholder”) who has
acquired such Shares pursuant to an Employment
Agreement with the Company. See “Selling
Shareholders.”
We will
not receive any of the proceeds from the sale of these shares by the selling
shareholder. See “Use of Proceeds.”
We have
agreed to pay the expenses in connection with the registration of these
shares.
Our Class
A Common Stock is listed on the NYSE Amex LLC, also called the AMEX, under the
trading symbol “NWD.” The last reported trade price for our Class A Common Stock
on May 5, 2009 was $0.16 per share.
INVESTING
IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. SEE “RISK FACTORS”
BEGINNING ON PAGE 2 OF THIS PROSPECTUS FOR CERTAIN RISKS THAT SHOULD BE
CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED
HEREBY.
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 8, 2009
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Risk
Factors
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2
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Information
Regarding Forward-Looking Statements
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9
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Use
of Proceeds
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10
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Selling
Shareholders
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11
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Plan
of Distribution
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12
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Limitation
on Liability and Indemnification Matters
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13
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Where
You Can Find More Information
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14
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Experts
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14
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Legal
Matters
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14
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Incorporation
by Reference
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14
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PROSPECTUS
SUMMARY
This
summary highlights information contained elsewhere or incorporated by reference
in this prospectus. Accordingly, it does not contain all of the
information that may be important to you. You should read this entire
prospectus carefully, including the information under “Risk Factors” and the
consolidated financial statements and the notes thereto included elsewhere in
this prospectus before making an investment decision. Unless the
context otherwise requires, references to “we,” “us” or “our” refer collectively
to New Dragon Asia Corp. and its subsidiaries. References to our
“Common Stock” refer to our Class A Common Stock.
New
Dragon Asia Corp.
New
Dragon Asia Corp. and its subsidiaries are engaged in the milling, sale and
distribution of flour and related products, including instant noodles and
soybean-derived products, to retail and wholesale customers throughout China. We
are headquartered in Shandong Province in the People’s Republic of China (“PRC”
or “China”). With a well-known brand name called “Long Feng”, we market our
well-established product line through a countrywide network of over 200 key
distributors and 16 regional offices in 27 Chinese provinces. We have eight
manufacturing plants in the PRC with an aggregate annual production capacity of
approximately 110,000 tons of flour and approximately 1.1 billion packets of
instant noodles and 4,500 tons of Soybean powder. We were incorporated in the
State of Florida on March 18, 1999 under the name Bio-Aqua Systems,
Inc.
Recent
Developments
On
January 10, 2006, the Company established New Dragon Asia (Long Kou) Packing
Materials Company Limited (“NDAPM”), a wholly-owned subsidiary in Longkou,
Shandong Province. NDAPM is principally engaged in the manufacturing and sale of
packing materials, with a registered capital of $3.60 million. During the year
ended December 25, 2008, the Company has spent approximately $2.20 million on
the construction at the new plant and has committed to further capital
expenditures of $1.46 million for the completion of the plant, which is
scheduled to be completed in 2009.
This
Offering
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Securities
being offered by the selling shareholder
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2,000,000
shares of our Class A Common Stock.
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Use
of
Proceeds
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We
will not receive any proceeds from the sales of the shares of Class A
Common Stock being offered by the selling shareholder .
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Trading
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Our
Class A Common Stock is listed on the NYSE Amex LLC under the symbol
“NWD”.
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RISK
FACTORS
You
should carefully consider the risks described below before making an investment
in us. The risks and uncertainties described below are not the only
ones facing us, and there may be additional risks that we do not presently know
of or that we presently consider immaterial. All of these risks may
impair our business operations. If any of the following risks
actually occurs, our business, financial condition or results of operations
could be materially adversely affected. In such case, the trading
price of our Class A Common Stock could decline, and you may lose all or part of
your investment.
Risks
Related to Our Class A Common Stock
We
have never paid dividends on our Class A Common Stock.
We have
never declared or paid any dividends on our Class A Common Stock. Our ability to
pay such cash dividends is subject to our receipt of dividends from our
operating subsidiaries, which are subject to legal restrictions in the PRC on
making such payments. We currently intend to retain future earnings,
if any, to finance operations and the expansion of our business. The declaration
and payment in the future of any cash or stock dividends on the Class A Common
Stock will be at the discretion of our Board of Directors and will depend upon a
variety of factors, including our ability to service our outstanding
indebtedness, if any, and to pay dividends on securities ranking senior to the
Class A Common Stock, including the shares of our outstanding Series A and
Series B Preferred Stock; our future earnings, if any; capital requirements;
financial condition; plans for expansion; restrictions imposed by PRC law; any
financing arrangements; and such other factors as our Board of Directors may
consider to be relevant from time to time. We do not expect to declare or pay
any dividends on our Class A Common Stock in the foreseeable
future.
We
are controlled by our major shareholder.
Our major
shareholder, New Dragon Asia Food Ltd., which is controlled by our Chairman, Mr.
Heng Jing Lu, owns approximately 44% of our outstanding shares. Mr.
Lu has sole voting and dispositive control over the shares of us held by New
Dragon Asia Food Ltd. As a result, Mr. Lu, through this shareholder,
effectively exercises control over all matters requiring shareholder approval,
including the election of directors and approval of significant corporate
transactions. This concentration of ownership may also have the effect of
delaying or preventing a change in control of us that may not be viewed as
beneficial by other shareholders.
Our
primary source of funds for dividends and other distributions from our operating
subsidiary in China is subject to various legal and contractual restrictions and
uncertainties, and our ability to pay dividends or make other distributions to
our shareholders are negatively affected by those restrictions and
uncertainties.
We are a
holding company established in the state of Florida and conduct our core
business operations through our operating subsidiaries, Hero Treasure Ltd.,
Delta Link Ltd., Mix Creation Ltd., Rich Delta Ltd. and Keen General Ltd. and
their respective subsidiaries in China. As a result, our profits
available for distribution to our shareholders are dependent on the profits
available for distribution from our subsidiaries. If our subsidiaries
incur debt on their own behalf, the debt instruments may restrict their ability
to pay dividends or make other distributions, which in turn would limit our
ability to pay dividends on our shares. Under the current PRC laws,
because we are incorporated in the State of Florida, our PRC subsidiaries are
each regarded as a wholly foreign-owned enterprise in China. The PRC
laws permit payment of dividends only out of net income as determined in
accordance with PRC accounting standards and
regulations. Determination of net income under PRC accounting
standards and regulations may differ from determination under U.S. GAAP in
significant aspects, such as the use of different principles for recognition of
revenues and expenses. In addition, distribution of additional equity
interests by any of our PRC subsidiaries to us (which is credited as fully paid
through capitalization of the PRC subsidiaries’ undistributed profits) requires
additional approval of the PRC government due to an increase in our registered
capital and total investment in the subsidiary. Under current PRC
laws, each of our subsidiaries is required to set aside a portion of its net
income each year to fund designated statutory reserve funds. These
reserves are not distributable as cash dividends. As a result, our
primary internal source of funds for dividend payments from the subsidiaries are
subject to these and other legal and contractual restrictions and uncertainties,
which in turn may limit or impair our ability to pay dividends to our
shareholders. Moreover, any transfer of funds from us to our
subsidiaries, either as a shareholder loan or as an increase in registered
capital, is subject to registration with or approval by PRC governmental
authorities. These limitations on the flow of funds between us and
the subsidiaries could restrict our ability to act in response to changing
market conditions.
Recent
regulations relating to offshore investment activities by PRC residents may
adversely affect our business and prospects.
On
September 8, 2006, several agencies of the PRC government issued a regulation
concerning restrictions on investments in China through special purpose
companies incorporated overseas and the listing of the shares of those companies
in overseas markets. The regulation contains a number of provisions
relating to the acquisition of Chinese domestic companies which involve
“important industries” and may affect the national economic safety or result in
the transfer of actual control rights of any company having “famous brands” or
any “old established Chinese brands,” and require that the parties to any such
transaction report to the Ministry of Commerce for
approval. Additionally, any foreign company directly or indirectly
controlled by Chinese companies or individuals used as a vehicle for public
listing in an overseas stock market will need China Securities Regulatory
Commission approval in connection with such listing. As it is
uncertain how this new regulation will be interpreted or implemented, we cannot
predict how this regulation will affect our business operations or future
strategies. For example, we may be subject to a more stringent review
and approval process with respect to our acquisition activities, which may
adversely affect our business and prospects.
Risks
Related to Our Business
We
may be subject to product liability claims and product recalls that could result
in a decrease in demand for our products due to negative publicity, which could
negatively impact our profitability.
We sell
food products for human consumption, which involves risks such as product
contamination or spoilage, product tampering and other adulteration of food
products. We may be subject to liability if the consumption of any of our
products causes injury, illness or death. In addition, we will voluntarily
recall products in the event of contamination or damage. A significant
product liability judgment or a widespread product recall may negatively impact
our profitability for a period of time depending on product availability,
competitive reaction and consumer attitudes. Even if a product liability
claim is unsuccessful or is not fully pursued, the negative publicity
surrounding any assertion that company products caused illness or injury could
adversely affect our reputation with existing and potential customers and our
corporate and brand image.
In
September 2008, the Health Ministry of the People’s Republic of China announced
that several babies had died in recent months and thousands more had been
sickened by contaminated milk formula powder due to the presence of melamine, an
industrial chemical sometimes used to make plastics and
fertilizer. On October 22, 2008, the United Nations issued a paper
addressing food safety in China, citing key challenges for China as the need for
a more modern food safety law; the need for improved monitoring, inspection and
enforcement; and the need to continue to improve standards to bring China in
line with international norms. Although none of our products contain
milk powder, negative international publicity surrounding this food safety issue
could influence the popular perceptions of international consumers and result in
lower demand for exports of food products from China, which could have an
adverse effect on our sales and profitability.
Our
business may experience adverse effects from competition in the noodle, flour
and soybean product markets.
The
noodle, flour and soybean product markets in the PRC are highly competitive.
Competition in these markets takes many forms, including the
following:
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establishing
favorable brand recognition;
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developing
products sought by consumers;
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implementing
appropriate pricing;
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providing
strong marketing support; and
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obtaining
access to retail outlets and sufficient shelf
space.
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Many of
our competitors are larger and have greater financial resources, including our
primary competitors, the manufactures of each of the brand names “Master Kang”
and “President”. We may not be able to compete successfully with such
competitors. Competition could cause us to lose our market share, increase
expenditures or reduce pricing, each of which could have a material adverse
effect on our business and financial results.
An
inability to respond quickly and effectively to new trends would adversely
impact our competitive position.
Our
failure to maintain our technological capabilities or to respond effectively to
technological changes could adversely affect our ability to retain existing
business and secure new business. We will need to constantly seek out
new products and develop new solutions to maintain in our
portfolio. If we are unable to keep current with new trends, our
competitors’ technologies or products may render us noncompetitive and our
products obsolete.
Increases
in prices of main ingredients and other materials could adversely affect our
business.
The main
ingredients that we use to manufacture our products are wheat, soybeans and
eggs. We also use paper products, such as corrugated cardboard, as well as films
and plastics, to package our products. The prices of these materials have been,
and we expect them to continue to be, subject to volatility. We may not be able
to pass price increases in these materials onto our customers, which could have
an adverse effect on our financial results.
We
are subject to risks associated with joint ventures and third party
agreements.
We
conduct certain of our milling and sales operations through joint ventures
established with certain Chinese parties. Any deterioration of these strategic
relationships may have an adverse effect on our operations. Changes
in laws and regulations, or their interpretation, or the imposition of
confiscatory taxation, restrictions on currency conversion, imports and sources
of supply, devaluations of currency or the nationalization or other
expropriation of private enterprises could have a material adverse effect on our
business, results of operations and financial condition. Under its current
leadership, the Chinese government has been pursuing economic reform policies
that encourage private economic activity and greater economic decentralization.
There is no assurance, however, that the Chinese government will continue to
pursue these policies, or that it will not significantly alter these policies
from time to time without notice.
We may
have limited legal recourse under Chinese law if disputes arise under our
agreements with joint ventures or third parties. The Chinese government has
enacted some laws and regulations dealing with matters such as corporate
organization and governance, foreign investment, commerce, taxation and trade.
However, the government’s experience in implementing, interpreting and enforcing
these laws and regulations is limited, and our ability to enforce commercial
claims or to resolve commercial disputes is unpredictable. If our new business
ventures are unsuccessful, or other adverse circumstances arise from these
transactions, we face the risk that the parties to these ventures may seek ways
to terminate the transactions, or, may hinder or prevent us from accessing
important information regarding the financial and business operations of these
acquired companies. The resolution of these matters may be subject to the
exercise of considerable discretion by agencies of the Chinese government, and
forces unrelated to the legal merits of a particular matter or dispute may
influence their determination. Any rights we may have to specific performance,
or to seek an injunction under Chinese law, in either of these cases, are
severely limited, and without a means of recourse by virtue of the Chinese legal
system, we may be unable to prevent these situations from occurring. The
occurrence of any such events could have a material adverse effect on our
business, financial condition and results of operations.
We
have limited business insurance coverage.
The
insurance industry in China is still in an early stage of
development. Insurance companies in China offer limited business
insurance coverage. As a result, we do not have any business
liability insurance coverage for our operations. Moreover, while
business disruption insurance is available, management has determined that the
risks of disruption and cost of the insurance are such that we do not require it
at this time. Any business disruption, litigation or natural disaster
might result in substantial costs and diversion of resources.
We
may experience risks resulting from our plans for expansion.
We have
acquired several companies and businesses and plan to continue to acquire
companies in the future. Entering into an acquisition entails many risks, any of
which could harm our business, including: (a) diversion of management’s
attention from other business concerns; (b) failure to integrate the acquired
company with our existing businesses; (c) additional operating expenses not
offset by additional revenue; and (d) dilution of our stock as a result of
issuing equity securities.
If we are
unable to implement our acquisition strategy, we may be less successful in the
future. A key component of our growth strategy is accomplished by acquiring
additional flour, noodle and soybean factories. While there are many such
companies, we may not always be able to identify and acquire companies meeting
our acquisition criteria on terms acceptable to us. Additionally, financing to
complete significant acquisitions may not always be available on satisfactory
terms. Further, our acquisition strategy presents a number of special risks to
us that we would not otherwise contend with absent such strategy,
including possible adverse effects on our earnings after each acquisition,
diversion of management’s attention from our core business due to the special
attention that a particular acquisition may require, failure to retain key
acquired personnel and risks associated with unanticipated events or liabilities
arising after each acquisition, some or all of which could have a material
adverse effect on our business, financial condition and results of
operations.
A
general economic downturn, a recession in China or sudden disruption in business
conditions may affect consumer purchases of discretionary items, including
instant noodles and soybean-derived products, which could adversely affect our
business.
Consumer
spending is generally affected by a number of factors, including general
economic conditions, the level of unemployment, inflation, interest rates,
energy costs, gasoline prices and consumer confidence generally, all of which
are beyond our control. Consumer purchases of discretionary items tend to
decline during recessionary periods, when disposable income is lower, and may
impact sales of our products. In addition, sudden disruptions in business
conditions as a result of a terrorist attack, retaliation and the threat of
further attacks or retaliation, war, adverse weather conditions and climate
changes or other natural disasters, pandemic situations or large scale power
outages can have a short or, sometimes, long-term impact on consumer spending. A
downturn in the economy in China, including any recession or a sudden disruption
of business conditions in those economies, could adversely affect our business,
financial condition, and results of operation.
Risks
Associated With Doing Business In China
We
are subject to the risks associated with doing business in the People’s Republic
of China.
As most
of our operations are conducted in the PRC, we are subject to special
considerations and significant risks not typically associated with companies
operating in North America and Western Europe. These include risks associated
with, among others, the political, economic and legal environments and foreign
currency exchange. Our results may be adversely affected by changes in the
political and social conditions in the PRC, and by changes in governmental
policies with respect to laws and regulations, anti-inflationary measures,
currency conversion and remittance abroad, and rates and methods of taxation,
among other things.
Although
the majority of productive assets in the PRC are owned by the Chinese
government, in the past several years the government has implemented economic
reform measures that emphasize decentralization and encourage private economic
activity. Because these economic reform measures may be inconsistent or
ineffectual, there are no assurances that:
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We
will be able to capitalize on economic
reforms;
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The
Chinese government will continue its pursuit of economic reform
policies;
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The
economic policies, even if pursued, will be
successful;
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Economic
policies will not be significantly altered from time to time;
and
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Business
operations in China will not become subject to the risk of
nationalization.
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Economic
reform policies or nationalization could result in a total investment loss in
our Class A Common Stock.
Since
1979, the Chinese government has reformed its economic systems. Because many
reforms are unprecedented or experimental, they are expected to be refined and
improved. Other political, economic and social factors, such as political
changes, changes in the rates of economic growth, unemployment or inflation, or
in the disparities in per capita wealth between regions within China, could lead
to further readjustment of the reform measures. This refining and readjustment
process may negatively affect our operations.
Over the
last few years, China’s economy has registered a high growth rate. Recently,
there have been indications that rates of inflation have increased. In response,
the Chinese government has taken measures to curb this excessively expansive
economy. These measures include restrictions on the availability of domestic
credit, reducing the purchasing capability of certain of our customers, and
limited re-centralization of the approval process for purchases of some foreign
products. The Chinese government may adopt additional measures to further combat
inflation, including the establishment of freezes or restraints on certain
projects or markets. These measures may adversely affect our manufacturing
operations.
To date,
reforms to China’s economic system have not adversely impacted our operations
and are not expected to adversely impact operations in the foreseeable future;
however, there can be no assurance that the reforms to China’s economic system
will continue or that we will not be adversely affected by changes in China’s
political, economic, and social conditions and by changes in policies of the
Chinese government, such as changes in laws and regulations, measures which may
be introduced to control inflation and changes in the rate or method of
taxation.
On
November 11, 2001, China signed an agreement to become a member of the World
Trade Organization (“WTO”), the international body that sets most trade rules,
further integrating China into the global economy and significantly reducing the
barriers to international commerce. China’s membership in the WTO was effective
on December 11, 2001. China has agreed upon its accession to the WTO to reduce
tariffs and non-tariff barriers, remove investment restrictions and provide
trading and distribution rights for foreign firms. The tariff rate reductions
and other enhancements will enable us to develop better investment strategies.
In addition, the WTO’s dispute settlement mechanism provides a credible and
effective tool to enforce members’ commercial rights. Also, with China’s entry
to the WTO, it is believed that the relevant laws on foreign investment in China
will be amplified and will follow common practices.
The
Chinese legal system is not fully developed and has inherent uncertainties that
could limit the legal protections available to investors.
The
Chinese legal system is a system based on written statutes and their
interpretation by the Supreme People’s Court. Prior court decisions may be cited
for reference but have limited legal precedents. Since 1979, the PRC government
has been developing a comprehensive system of commercial laws, and considerable
progress has been made in introducing laws and regulations dealing with economic
matters such as foreign investment, corporate organization and governance,
commerce, taxation and trade. Two examples are the promulgation of the Contract
Law of the PRC to unify the various economic contract laws into a single code,
which went into effect on October 1, 1999, and the Securities Law of the
People’s Republic of China, which went into effect on July 1, 1999. However,
because these laws and regulations are relatively new, and because of the
limited volume of published cases and their non-binding nature, interpretation
and enforcement of these laws and regulations involve uncertainties. In
addition, as the Chinese legal system develops, changes in such laws and
regulations, their interpretation or their enforcement may have a material
adverse effect on our business operations.
Enforcement
of regulations in China may be inconsistent.
Although
the Chinese government introduced new laws and regulations to modernize its
securities and tax systems on January 1, 1994, China does not yet possess an
expansive body of business law. As a result, the enforcement, interpretation and
implementation of regulations may prove to be inconsistent and it may be
difficult to enforce contracts.
We
may experience lengthy delays in resolution of legal disputes.
As China
has not developed a dispute resolution mechanism similar to the Western court
system, dispute resolution over Chinese projects and joint ventures can be
difficult and there is no assurance that any dispute involving our business in
China can be resolved expeditiously and satisfactorily.
We
may experience an impact of the United States Foreign Corrupt Practices Act on
our business.
We are
subject to the United States Foreign Corrupt Practices Act, which generally
prohibits Unites States companies from engaging in bribery or other prohibited
payments to foreign officials for the purpose of obtaining or retaining
business. Foreign companies, including some that may compete with us, are not
subject to these prohibitions. Corruption, extortion, bribery, pay-offs, theft
and other fraudulent practices occur from time-to-time in mainland China. We
have attempted to implement safeguards to prevent and discourage such practices
by our employees and agents. We cannot assure you, however, that our employees
or other agents will not engage in such conduct for which we might be held
responsible. If our employees or other agents are found to have engaged in such
practices, we could suffer severe penalties and other consequences that may have
a material adverse effect on our business, financial condition and results of
operations.
Impact
of governmental regulation on our operations.
We may be
subjected to liability for product safety that could lead to a product recall.
Our operations and properties are subject to regulation by various Chinese
government entities and agencies. As a producer of food products, our operations
are subject to production, packaging, quality, labeling and distribution
standards. Our production and distribution facilities are also subject to
various local environmental laws and workplace regulations.
We
believe that our current legal and environmental compliance programs adequately
address such concerns and that we are in compliance with applicable laws and
regulations. However, compliance with, or any violation of, current and future
laws or regulations could require material expenditures or otherwise adversely
affect our business and financial results.
We may be
liable if the consumption of any of our products cause injury, illness or death.
We may also be required to recall certain of our products that become
contaminated or are damaged. We are not aware of any material product liability
judgment against us. However, a product liability judgment or a product recall
could have a material adverse effect on our business or financial
results.
It
may be difficult to serve us with legal process or enforce judgments against our
management or us.
All of
our assets are located in China. In addition, all of our directors and officers
are non-residents of the United States, and all, or substantial portions of the
assets of such non-residents, are located outside the United States. As a
result, it may not be possible to effect service of process within the United
States upon such persons. Moreover, there is doubt as to whether the courts of
China would enforce:
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Judgments
of United States courts against us, our directors or our officers based on
the civil liability provisions of the securities laws of the United States
or any state; or
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Original
actions brought in China relating to liabilities against non-residents or
us based upon the securities laws of the United States or any
state.
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The
Chinese government could change its policies toward private enterprise or even
nationalize or expropriate it, which could result in the total loss of your
investment.
Our
business is subject to significant political and economic uncertainties and may
be adversely affected by political, economic and social developments in China.
Over the past several years, the Chinese government has pursued economic reform
policies including the encouragement of private economic activity and greater
economic decentralization. The Chinese government may not continue to pursue
these policies or may significantly alter them to our detriment from time to
time with little, if any, prior notice. Changes in policies, laws and
regulations or in their interpretation or the imposition of confiscatory
taxation, restrictions on currency conversion, restrictions or prohibitions on
dividend payments to shareholders, devaluations of currency or the
nationalization or other expropriation of private enterprises could have a
material adverse effect on our business. Nationalization or expropriation could
even result in the total loss of our investment in China and in the total loss
of your investment.
If
relations between the United States and China worsen, our stock price may
decrease and we may have difficulty accessing U.S. capital markets.
At
various times during recent years, the United States and China have had
significant disagreements over political and economic issues. Controversies may
arise in the future between these two countries. Any political or trade
controversies between the United States and China, whether or not directly
related to our business, could adversely affect the market price of our Class A
Common Stock and our ability to access U.S. capital markets.
The
Chinese economic, political and social conditions as well as government policies
could affect our business.
All of
our business, assets and operations are located in China. The economy of China
differs from the economies of most developed countries in many respects,
including:
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government
involvement;
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control
of foreign exchange; and
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allocation
of resources.
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The
economy of China has been transitioning from a planned economy to a more
market-oriented economy. Although in recent years the Chinese government has
implemented measures emphasizing the utilization of market forces for economic
reform, the reduction of state ownership of productive assets and the
establishment of sound corporate governance in business enterprises, a
substantial portion of productive assets in China is still owned by the Chinese
government. In addition, the Chinese government continues to play a significant
role in regulating industry by imposing industrial policies. It also exercises
significant control over China’s economic growth through the allocation of
resources, controlling payment of foreign currency-denominated obligations,
setting monetary policy and providing preferential treatment to particular
industries or companies.
The
economy of China has experienced significant growth in the past 20 years, but
growth has been uneven both geographically and among various sectors of the
economy. The Chinese government has implemented various measures from time to
time to control the rate of economic growth. Some of these measures benefit the
overall economy of China, but may have a negative effect on us. For example, our
operating results and financial condition may be adversely affected
by:
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changes
in the rate or method of taxation;
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imposition
of additional restrictions on currency conversion and remittances
abroad;
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reduction
in tariff or quota protection and other import restrictions;
and
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changes
in the usage and costs of state-controlled transportation
services.
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Fluctuations
in the value of the Chinese Renminbi relative to foreign currencies could affect
our operating results.
Substantially
all our revenues and expenses are denominated in the Chinese Renminbi. However,
we use the United States dollar for financial reporting purposes. The value of
Chinese Renminbi against the United States dollar and other currencies may
fluctuate and is affected by, among other things, changes in China’s political
and economic conditions. The Chinese government values the exchange rate of the
Chinese Renminbi against a number of currencies, rather than just exclusively to
the United States dollar. Although the Chinese government has stated its
intention to support the value of the Chinese Renminbi, we cannot assure you
that the government will not revalue it. As our operations are primarily in
China, any significant revaluation of the Chinese Renminbi may materially and
adversely affect our cash flows, revenues and financial condition. For example,
to the extent that we need to convert United States dollars into Chinese
Renminbi for our operations, appreciation of this currency against the United
States dollar could have a material adverse effect on our business, financial
condition and results of operation. Conversely, if we decide to convert our
Chinese Renminbi into United States dollars for other business purposes and the
United States dollar appreciates against this currency, the United States dollar
equivalent of the Chinese Renminbi would be reduced. To date, we have not
engaged in any hedging transactions in connection with our
operations.
The
discontinuation of the preferential tax treatment currently available to our
Chinese subsidiaries might adversely affect our results of
operations.
Our
Chinese operating subsidiaries are subject to the People’s Republic of China
Enterprise Income Tax Law Concerning Foreign-Invested Enterprises and Foreign
Enterprises. Under this law and its related regulations, our Chinese
subsidiaries as foreign-invested enterprises, are generally subject to
enterprise income tax at a statutory rate of 33% (30% national income tax plus
3% local income tax) through 2007, and 25% from January 1, 2008 under the
tax law described below. However, as manufacturing foreign invested enterprises,
our Chinese subsidiaries enjoyed “two-year exemption, three-year 50% reduction”
preferential tax treatment from their first profitable year. However, under the
new tax law, a new manufacturing foreign-invested enterprise established after
March 16, 2007 will not be entitled to such preferential tax treatment
anymore.
On
March 16, 2007, the National People’s Congress of the People’s Republic of
China passed the People’s Republic of China Enterprise Income Tax Law, which was
effective as of January 1, 2008. In accordance with the new law, a unified
enterprise income tax rate of 25% and unified tax deduction standards will be
applied equally to both domestic-invested enterprises and foreign-invested
enterprises. Enterprises established prior to March 16, 2007 eligible for
preferential tax treatment in accordance with the currently prevailing tax laws
and administrative regulations shall, under the regulations of the State
Council, gradually be subject to the new tax rate over a five-year transition
period starting from the effectiveness date of the new law. For foreign-invested
enterprises that currently enjoy “two-year exemption, three-year 50% reduction”
preferential tax treatment, the tax holiday are still valid.
INFORMATION
REGARDING FORWARD-LOOKING STATEMENTS
Under the
Private Securities Litigation Reform Act of 1995, companies are provided with a
“safe harbor” for making forward-looking statements about the potential risks
and rewards of their strategies. Forward-looking statements often
include the words “believe,” “expect,” “anticipate,” “intend,” “plan,”
“estimate” or similar expressions. In this prospectus,
forward-looking statements also include:
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Statements
about our business plans;
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Statements
about the potential for the development, regulatory approval and public
acceptance of new products;
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Estimates
of future financial performance;
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Predictions
of national or international economic, political or market
conditions;
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Statements
regarding other factors that could affect our future operations or
financial position; and
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Other
statements that are not matters of historical
fact.
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Our
ability to achieve our goals depends on many known and unknown risks and
uncertainties, including changes in general economic and business
conditions. These factors could cause our actual performance and
results to differ materially from those described or implied in forward-looking
statements. Factors that could cause or contribute to such
differences include, among others:
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The
success of our research and development activities and the speed with
which regulatory authorizations and product launches may be
achieved;
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Our
ability to continue to manage our
costs;
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Our
ability to successfully market new and existing products in new and
existing domestic and international
markets;
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The
effect of weather conditions and commodity markets on the agriculture
business;
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Our
exposure to lawsuits and other liabilities and
contingencies;
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The
accuracy of our estimates and projections, for example, those with respect
to product returns and grower use of our products and related distribution
inventory levels;
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Our
ability to obtain payment for the products that we
sell;
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The
effects of our accounting policies and changes in generally accepted
accounting principles;
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Our
ability to fund our short-term financing
needs;
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General
economic and business conditions;
and
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Any
changes in business, political and economic conditions due to threat of
future terrorist activity and related military
action.
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These
forward-looking statements speak only as of the date of this
prospectus. We believe it is in the best interest of our investors to
use forward-looking statements in discussing future events. However,
we are not required to, and you should not rely on us to, revise or update these
statements or any factors that may affect actual results, whether as a result of
new information, future events or otherwise.
USE
OF PROCEEDS
We will
not receive any proceeds from the issuance of our Class A Common Stock to the
selling shareholder.
SELLING
SHAREHOLDERS
This
prospectus relates to shares of our Class A Common Stock that are being
registered for reoffers and resales by the Selling Shareholders named below who
have acquired shares of our Class A Common Stock pursuant to the Plan. The
Selling Shareholders may resell any or all of the shares of our Class A Common
Stock at any time they choose while this prospectus is effective.
Executive
officers and directors, their family members, trusts for their benefit, or
entities that they own, that acquire shares of our Class A Common Stock from a
Selling Shareholder may be added to the Selling Shareholders list below by a
prospectus supplement filed with the SEC. The number of Shares to be sold by any
Selling Shareholder under this prospectus also may be increased or decreased by
a prospectus supplement. Although a person’s name is included in the table
below, neither that person nor we are making an admission that the named person
is our “affiliate.”
Unless
otherwise described below, to our knowledge, no selling shareholder nor any of
its affiliates has held any position or office with, been employed by, or
otherwise has had any material relationship with us, or our affiliates, during
the three years prior to the date of this prospectus.
As of
March 9, 2009, there were 64,145,392 shares of our Class A Common Stock
outstanding.
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Name
of Selling Shareholder
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Number
of Shares Beneficially Owned Prior to this
Offering
(1)
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Number
of Shares Offered Hereby (1)
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Number
of
Shares
Owned
After
this Offering Assuming All Shares Offered Hereby are sold
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Percentage
of Ownership After this Offering (%)
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Ling
Wang (2)
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2,000,000
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2,000,000
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0
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0%
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(1)
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For
purposes of this table, we have assumed that the selling shareholder will
have sold all of the shares registered under this prospectus upon
completion of the offering and that additional shares issuable in
connection with certain dilutive events have not been
issued.
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(2)
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Ms.
Ling Wang is the Chief Financial Officer of the
Company.
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PLAN
OF DISTRIBUTION
Each
selling shareholder of our Class A Common Stock and any of their pledgees,
assignees and successors-in-interest may, from time to time, sell any or all of
their shares of Class A Common Stock on the NYSE Amex LLC or any other stock
exchange, market or trading facility on which the shares are traded or in
private transactions. These sales may be at fixed or negotiated
prices. A selling shareholder may use any one or more of the
following methods when selling shares of our Class A Common Stock:
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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privately
negotiated transactions;
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settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
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broker-dealers
may agree with the selling shareholders to sell a specified number of such
shares at a stipulated price per
share;
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a
combination of any such methods of
sale;
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through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
or
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any
other method permitted pursuant to applicable
law.
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The
selling shareholders may also sell our Class A Common Stock under Rule 144 under
the Securities Act, if available, rather than under this
prospectus.
Broker-dealers
engaged by the selling shareholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling shareholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this Prospectus, in the case of an
agency transaction not in excess of a customary brokerage commission in
compliance with NASDR Rule 2440; and in the case of a principal transaction a
markup or markdown in compliance with NASDR IM-2440.
In
connection with the sale of the our Class A Common Stock or interests therein,
the selling shareholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the
Class A Common Stock in the course of hedging the positions they
assume. The selling shareholders may also sell our Class A Common
Stock short and deliver these securities to close out their short positions, or
loan or pledge the Class A Common Stock to broker-dealers that in turn may sell
these securities. The selling shareholders may also enter into option
or other transactions with broker-dealers or other financial institutions or the
creation of one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of our Class A Common Stock offered
by this prospectus, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction).
The
selling shareholders, and any broker-dealers or agents that are involved in
selling our Class A Common Stock, may be deemed to be “underwriters” within the
meaning of the Securities Act in connection with such sales. In such
event, any commissions received by such broker-dealers or agents and any profit
on the resale of our Class A Common Stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. Each
selling shareholder has informed us that it does not have any written or oral
agreement or understanding, directly or indirectly, with any person to
distribute the Class A Common Stock. In no event shall any
broker-dealer receive fees, commissions and markups which, in the aggregate,
would exceed eight percent (8%).
We are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares of our Class A Common Stock. We have
agreed to indemnify the selling shareholders against certain losses, claims,
damages and liabilities, including liabilities under the Securities
Act.
Because
selling shareholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act. In addition, any securities covered by this
prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than under this prospectus. Each
selling shareholder has advised us that they have not entered into any written
or oral agreements, understandings or arrangements with any underwriter or
broker-dealer regarding the resale of our Class A Common Stock. There
is no underwriter or coordinating broker acting in connection with the proposed
the resale of our Class A Common Stock by the selling shareholders.
The
resale of such shares will be made only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale of such shares may not be made unless
they have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934, as
amended, any person engaged in the distribution of such resale of our Class A
Common Stock may not simultaneously engage in market making activities with
respect to our Class A Common Stock for a period of two business days prior to
the commencement of the distribution. In addition, the selling
shareholders will be subject to applicable provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder, including
Regulation M, which may limit the timing of purchases and sales of shares of our
Class A Common Stock by the selling shareholders or any other
person. We will make copies of this prospectus available to the
selling shareholders and we have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the
sale.
LIMITATION
ON LIABILITY AND INDEMNIFICATION MATTERS
Our
Articles of Incorporation limit the liability of directors to the maximum extent
permitted by Florida law. In addition, our bylaws require us to
indemnify our directors and officers, and allow us to indemnify our other
employees and agents to the fullest extent permitted by law. At
present, there is no pending litigation or proceeding involving any director,
officer, employee or agent where indemnification will be required or
permitted. We are not aware of any threatened litigation or
proceeding that might result in a claim for indemnification. If we
permit indemnification for liabilities arising under the Securities Act to
directors, officers or controlling persons under these provisions, we have been
informed that, in the opinion of the Securities and Exchange Commission, this
indemnification is against public policy as expressed in the Securities Act and
is unenforceable.
WHERE
YOU CAN FIND MORE INFORMATION
We are a
public company and file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any
document we file at the SEC’s public reference room at 100 F Street, N.E.,
Washington, D.C. 20549. You can request copies of these documents by
writing to the SEC and paying a fee for the copying cost. Please call
the SEC at 1-800-SEC-0330 for more information about the operation of the public
reference room. Our SEC filings are also available, at no charge, to
the public at the SEC’s web site at http://www.sec.gov.
This
prospectus is only part of a registration statement on Form S-8 that we
have filed with the SEC under the Securities Act of 1933 and therefore omits
certain information contained in the registration statement. We have
also filed exhibits and schedules to the registration statement that are
excluded from this Prospectus, and you should refer to the applicable exhibit or
schedule for a complete description of any statement referring to any contract
or other document. You may inspect or obtain a copy of the
registration statement, including the exhibits and schedules, as described in
the previous paragraph at no charge from us.
EXPERTS
The
financial statements included in our Annual Report on Form 10-K for the fiscal
years ended December 25, 2007 and December 25, 2008, which report is
incorporated by reference in this prospectus and elsewhere in the registration
statement, have been audited by Grobstein, Horwath & Company LLP and Crowe
Horwath LLP, respectively, each an independent registered public accounting
firm, to the extent and for the periods set forth in their reports and are
included in reliance upon such report given upon the authority of said firms as
experts in auditing and accounting.
LEGAL
MATTERS
Loeb
& Loeb LLP, New York has passed upon the validity of the Class A
Common Stock being offered hereby.
CAUTIONARY
NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Certain
Statements contained in, or incorporated by reference in, this Registration
Statement are forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, and Section 21E of the Securities Exchange Act of
1934. These statements relate to future events or the Company’s future financial
performance. The Company has attempted to identify forward-looking statements by
terminology including “anticipates”, “believes”, “expects”, “can”, “continue”,
“could”, “estimates”, “expects”, “intends”, “may”, “plans”, “potential”,
“predict”, “should” or “will” or the negative of these terms or other comparable
terminology. These statements are only predictions, uncertainties and other
factors may cause the Company’s actual results, levels of activity, performance
or achievements to be materially different from any future results, levels or
activity, performance or achievements expressed or implied by these
forward-looking statements. Although the Company believes that the expectations
reflected in the forward-looking statements are reasonable, the Company cannot
guarantee future results, levels of activity, performance or achievements. The
Company expectations are as of the date this Registration Statement is filed,
and the Company does not intend to update any of the forward-looking statements
after the date this Registration Statement is filed to confirm these statements
to actual results, unless required by law.
INCORPORATION
BY REFERENCE
The SEC
allows us to incorporate by reference into this prospectus the information that
we file with the SEC in other documents. This means that we can
disclose important information to you by referring to other documents that
contain that information. The information may include documents filed
after the date of this prospectus which update and supersede the information you
read in this prospectus. We incorporate by reference the following
documents listed below, except to the extent information in those documents is
different from the information contained in this prospectus, and all future
documents filed with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act, until we terminate the offering of these shares:
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Our
Annual Report on Form 10-K for the fiscal year ended December 25, 2008,
filed with the SEC on April 7,
2009;
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Our
Current Report on Form 8-K, dated January 9, 2009, filed with the SEC on
January 27, 2009;
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Our
Current Report on Form 8-K, dated February 12, 2009, filed with the SEC on
February 13, 2009; and
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The
description of our Class A Common Stock which is contained in the
registration statement on Form SB-2/A (File No. 333-81829) filed with the
SEC on March 3, 2000, including any amendment or reports filed for the
purpose of updating such
description.
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You may
request a copy of these documents, at no cost, by written request to: New Dragon
Asia Corp. Attn: Ling Wang, Chief Financial Officer; 10 Huangcheng
Road (N), Longkou, Shandong Province, PRC.
This prospectus may contain information
that updates, modifies or is contrary to information in one or more of the
documents incorporated by reference in this prospectus. Reports we
file with the SEC after the date of this prospectus may also contain information
that updates, modifies or is contrary to information in this prospectus or in
documents incorporated by reference into this prospectus. You should
review these reports as they may disclose a change in our business, prospects,
financial condition or other affairs after the date of this
prospectus.
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We
have not authorized any dealer,
salesperson
or any other person to give any
information
or to represent anything other than
those
contained in this prospectus in connection
with
the offer contained herein, and, if given
or
made, you should not rely upon such
information
or representations as having been
authorized
by New Dragon Asia Corp. This prospectus
does
not constitute an offer of any securities
other
than those to which it relates or an offer
to
sell, or a solicitation of an offer to buy,
those
to which it relates in any state to any
person
to whom it is not lawful to make such
offer
in such state. The delivery of this
prospectus
at any time does not imply that the
information
herein is correct as of any time
after
the date of this prospectus.
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__________________
Prospectus
_________________
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Dated
May 8, 2009
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TABLE
OF CONTENTS
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Page
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Prospectus
Summary
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1
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Risk
Factors
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2
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Information
Regarding Forward-Looking Statements
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9
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Use
of Proceeds
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10
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Selling
Shareholders
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11
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Plan
of Distribution
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12
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Limitation
on Liability and Indemnification Matters
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13
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Where
You Can Find More Information
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14
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Experts
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14
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Legal
Matters
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14
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Incorporation
by Reference
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14
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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ITEM
3.
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INCORPORATION
OF DOCUMENTS BY REFERENCE.
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The
following documents are incorporated by reference into this Registration
Statement:
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Our
Annual Report on Form 10-K for the fiscal year ended December 25, 2008,
filed with the SEC on April 7,
2009;
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Our
Current Report on Form 8-K, dated January 9, 2009, filed with the SEC on
January 27, 2009;
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Our
Current Report on Form 8-K, dated February 12, 2009, filed with the SEC on
February 13, 2009; and
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The
description of our Class A Common Stock which is contained in the
registration statement on Form SB-2/A (File No. 333-81829) filed with the
SEC on March 3, 2000, including any amendment or reports filed for the
purpose of updating such
description.
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In
addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents with the
Commission. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein, or
in a subsequently filed document incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Registration Statement.
|
ITEM
4.
|
DESCRIPTION
OF SECURITIES.
|
Not
applicable.
|
ITEM
5.
|
INTERESTS
OF NAMED EXPERTS AND COUNSEL.
|
Not
applicable.
|
ITEM
6.
|
INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
|
Our
Articles of Incorporation, as amended, include provisions, which limit the
liability of our directors. As permitted by applicable provisions of
the Florida Law, directors will not be liable to us for monetary damages arising
from a breach of their fiduciary duty as directors in certain
circumstances. This limitation does not affect liability for any
breach of a director’s duty to us or our shareholders (i) with respect to
approval by the director of any transaction from which he or she derives an
improper personal benefit, (ii) with respect to acts or omissions involving an
absence of good faith, that the director believes to be contrary to the best
interests of us or our shareholders, that involve intentional misconduct or a
knowing and culpable violation of law, that constitute an unexcused pattern or
inattention that amounts to an abdication of his or her duty to us or our
shareholders, or that show a reckless disregard for duty to us or our
shareholders in circumstances in which he or she was, or should have been aware,
in the ordinary course of performing his or her duties, of a risk of serious
injury to us or our shareholders, or (iii) based on transactions between us and
our directors or another corporation with interrelated directors or based on
improper distributions, loans or guarantees under applicable sections of Florida
Law. This limitation of directors’ liability also does not affect the
availability of equitable remedies, such as injunctive relief or
rescission.
The
Company has been advised that it is the position of the Commission that insofar
as the provision in our Articles of Incorporation, as amended, may be invoked
for liabilities arising under the Securities Act, the provision is against
public policy and is therefore unenforceable.
|
ITEM
7.
|
EXEMPTION
FROM REGISTRATION CLAIMED.
|
Not
applicable.
|
Exhibit
Number
|
Description
|
|
|
|
|
5.1
|
Opinion
of Loeb & Loeb LLP.
|
|
|
|
|
10.1
|
Employment
Agreement between the Company and Ling Wang, dated April 1, 2009 (filed
herewith).
|
|
|
|
|
23.1
|
Consent
of Grobstein, Horwath & Company LLP.
|
|
|
|
|
23.2
|
Consent
of Crowe Horwath LLP.
|
|
|
|
|
23.3
|
Consent
of Loeb & Loeb LLP (included in exhibit 5.1).
|
|
|
|
|
24.1
|
Power
of Attorney (included on signature
page).
|
(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 of
1933;
(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 amount of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated offering
range may be reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
Registration Statement;
(iii) to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however,
that the
foregoing paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement
(2)
That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof;
and
(3)
To remove from the registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4)
That, for the purpose of determining liability under the Securities Act to any
purchaser:
(i) Each prospectus filed
by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
Registration Statement as of the date the filed prospectus was deemed part of
and included in the Registration Statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
Registration Statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act shall be deemed
to be part of and included in the Registration Statement as of the earlier of
the date such form of prospectus is first used after effectiveness or 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
incorporated by reference into the Registration Statement or prospectus that is
part of the Registration Statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement
that was made in the Registration Statement or prospectus that was part of the
Registration Statement or made in any such document immediately prior to such
effective date.
(5)
That, for the purpose of determining liability of the Registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities:
The undersigned Registrant undertakes
that in a primary offering of securities of the undersigned Registrant pursuant
to this Registration Statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the undersigned
Registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned Registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned
Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any
other free writing prospectus relating to the offering containing material
information about the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
(c)
Insofar as indemnification for liability arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it or against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Longkou, Shandong Province, PRC on May 7,
2009.
|
|
NEW
DRAGON ASIA CORP.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Li
Xia Wang
|
|
|
|
|
Name:
|
Li
Xia Wang
|
|
|
|
|
Title:
|
Chief
Executive Officer
|
|
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Li Xia Wang and Ling Wang as his true and
lawful attorney-in-fact, with full power of substitution and resubstitution for
him and in his name, place and stead, in any and all capacities to sign any and
all amendments including post-effective amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, hereby ratifying and confirming
all that said attorney-in-fact or his substitute, each acting alone, may
lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons and in the capacities and on
the dates indicated.
|
Dated: May
7, 2009
|
By:
|
/s/
Heng
Jing Lu
|
|
|
|
|
Name:
|
Heng
Jing Lu
|
|
|
|
|
Title:
|
Chairman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated: May
7, 2009
|
By:
|
/s/
Li
Xia Wang
|
|
|
|
|
Name:
|
Li
Xia Wang
|
|
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated: May
7, 2009
|
By:
|
/s/
Ling
Wang
|
|
|
|
|
Name:
|
Ling
Wang
|
|
|
|
|
Title:
|
Chief
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated: May
7, 2009
|
By:
|
/s/
De
Lin Yang
|
|
|
|
|
Name:
|
De
Lin Yang
|
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated: May
7, 2009
|
By:
|
/s/
Zhi
Yong Jiang
|
|
|
|
|
Name:
|
Zhi
Yong Jiang
|
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated: May
7, 2009
|
By:
|
/s/
Qi
Xue
|
|
|
|
|
Name:
|
Qi
Xue
|
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated: May
7, 2009
|
By:
|
/s/
Feng
Ju Chen
|
|
|
|
|
Name:
|
Feng
Ju Chen
|
|
|
|
|
Title:
|
Director
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
|
|
|
|
5.1
|
Opinion
of Loeb & Loeb, LLP.
|
|
|
|
|
|
|
10.1
|
Employment
Agreement between the Company and Ling Wang, dated April 1,
2009.
|
|
|
|
|
|
|
23.1
|
Consent
of Grobstein, Horwath & Company LLP.
|
|
|
|
|
|
23.2
|
Consent
of Crowe Horwath LLP.
|
|
|
|
|
|
23.3
|
Consent
of Loeb & Loeb, LLP (included in exhibit 5.1).
|
|
|
|
|
|
|
24.1
|
Power
of Attorney (included on signature page).
|
|
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