As filed
with the Securities and Exchange Commission on May 3, 2010
Registration
No. 333- 140971
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
GULF
RESOURCES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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13-3637458
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2800
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(IRS
Employer Identification No.)
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(Primary
Standard Industrial
Classification
Code Number)
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99
Wenchang Road, Chenming Industrial Park, Shouguang City, Shandong, China,
262714
+86 (536)
567-0008
______________________________________________________________________________
(Address,
including zip code, and Telephone Number, including area code, of Registrant’s
Principal Executive Offices)
_________
Loeb
& Loeb LLP
345 Park
Avenue
New York,
New York 10154
(212)
407-4000
______________________________________________________________________________
(Name,
Address, including zip code, and Telephone Number, including area code, of Agent
for Service)
__________
With a
copy to:
Mitchell
S. Nussbaum, Esq.
Loeb
& Loeb LLP
345 Park
Avenue
New York,
New York 10154
Tel: (212)
407-4159
Fax: (212)
407 4990
Approximate date of commencement of
proposed sale to the public
: From time to time after this
registration statement becomes effective.
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.
ý
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(d) 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.
¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
¨
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Accelerated filer
¨
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Non-accelerated filer
¨
(Do not check if smaller
reporting company)
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Smaller reporting company
ý
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REOFFER
PROSPECTUS
262,500
Shares of Common Stock
Gulf
Resources, Inc.
Common
Stock $0.0005 Par Value Per Share
This
Prospectus relates to 262,500 shares (the “Shares”) of Common Stock, par value
$0.0005 per share (“Common Stock”), of Gulf Resources, Inc. (the
“Company,”) which may be offered and sold from time to time by certain
stockholders of the Company (the “Selling Stockholders”) who have acquired or
will acquire such Shares pursuant to stock options and stock awards issued or
issuable under the Company’s Amended and Restated 2007 Equity Incentive Plan
(the “Plan”). See “Selling Stockholders.” It is
anticipated that the Selling Stockholders will offer Shares for sale at
prevailing prices on the NASDAQ Global Select Market on the date of sale, in
negotiated transactions or otherwise, at market prices prevailing at the time of
the sale or at prices otherwise negotiated. See “Plan of
Distribution.” We will receive no part of the proceeds from sales
made under this reoffer prospectus. The Selling Stockholders will
bear all sales commissions and similar expenses. Any other expenses
incurred by us in connection with the registration and offering and not borne by
the Selling Stockholders will be borne by us.
We have
agreed to pay the expenses in connection with the registration of these
Shares. Our Common Stock is traded on the Nasdaq Global Select Market
under the symbol “GFRE.”
Our
principal executive office is located at 99 Wenchang Road, Chenming Industrial
Park, Shouguang City, Shandong, China, 262714 and our telephone number is +86
(536) 567 0008.
INVESTING IN OUR SECURITIES INVOLVES A
HIGH DEGREE OF RISK. SEE “RISK FACTORS” BEGINNING ON PAGE 5 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 3, 2010.
Table
of Contents
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Page
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Prospectus
Summary
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1
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The
Offering
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4
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Forward-Looking
Statements
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4
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Risk
Factors
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5
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Use
of Proceeds
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10
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Selling
Stockholders
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10
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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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Experts
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13
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Legal
Matters
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14
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Incorporation
of Documents by Reference
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14
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Where
You Can Find More Information
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15
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You
should rely only on the information contained in this prospectus. We
have not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely on it. The Selling Stockholders will
not make an offer to sell these securities in any jurisdiction where an offer or
sale is not permitted. You should assume that the information
appearing in this prospectus is accurate as of the date on the front cover of
this prospectus only, regardless of the time of delivery of this prospectus or
of any sale of our Common Stock. Our business, financial condition,
results of operations and prospects may have changed since that
date.
PROSPECTUS
SUMMARY
This
summary may not contain all of the information that may be important to you. We
urge you to read this entire prospectus carefully, including the risks of
investing in our Common Stock discussed under “Risk Factors” and the financial
statements and other information that is incorporated by reference into this
prospectus, before making an investment decision. In addition, this prospectus
summarizes other documents, incorporated by reference which we urge you to
read.
Overview
of Our Business
We
conduct our operations through our two wholly-owned PRC subsidiaries, Shouguang
City Haoyuan Chemical Company Limited (“SCHC”) and Shouguang Yuxin Chemical
Industry Co., Limited (“SYCI”). Through SCHC we manufacture and trade
bromine and crude salt, and we believe that we are one of the largest producers
of bromine in China, as measured by production output. Through SYCI
we manufacture and sell chemical products used in oil and gas field exploration,
oil and gas distribution, oil field drilling, wastewater processing, papermaking
chemical agents and inorganic chemicals. We report our business in two
segments; Bromine and Crude Salt, and Chemical Products.
Bromine
(Br
2
)
is a halogen element and it is a red volatile liquid at standard room
temperature which has reactivity between chlorine and
iodine. Elemental bromine is used to manufacture a wide variety
of bromine compounds used in industry and agriculture. Bromine is also used to
form intermediates in organic synthesis, in which it is somewhat preferable over
iodine due to its lower cost. Our bromine is commonly used in
brominated flame retardants, fumigants, water purification compounds, dyes,
medicines and disinfectants. According to figures published by the China
Crude Salt Association, we are one of the largest manufacturers of
bromine in the PRC, as measured by production output.
The
extraction of bromine in the Shandong Province is limited by the Provincial
Government to six licensees. We hold one of such
licenses. The other five license holders produce bromine mainly for
their own consumption. There are only six licensed bromine producers
in Shandong Province, and the government has shut down hundreds of small
unlicensed producers. Part of our business strategy is to acquire
these producers and to use our bromine to expand our downstream chemical
operations.
Our
executive offices are located in the PRC at 99 Wenchang Road, Chenming
Industrial Park, Shouguang City, Shandong, People's Republic of China. Our
telephone number is +86 (536) 5670008. Our website address is
www.gulfresourcesinc.cn.
THE
OFFERING
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Common
Stock being offered by Selling Stockholders
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Up
to 262,500 shares
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Use
of Proceeds
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We
will not receive any proceeds from the sale of the Common Stock offered in
this prospectus.
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NASDAQ
Global Select Market Symbol
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GFRE
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Risk
Factors
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The
securities offered by this prospectus are speculative and involve a high
degree of risk. Investors purchasing securities should not
purchase the securities unless they can afford the loss of their entire
investment. See “Risk Factors” beginning on page
5.
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FORWARD-LOOKING
STATEMENTS
We
believe that some of the information in this prospectus constitutes
forward-looking statements within the definition of the Private Securities
Litigation Reform Act of 1995. You can identify these statements by
forward-looking words such as “may,” “expect,” “anticipate,” “contemplate,”
“believe,” “estimate,” “intend,” “plan,” “project,” “target,” “can,” “could,”
“should,” “will,” “would” and “continue” or similar words or
expressions. Any information in this prospectus regarding the
contingent earn-out payments should also be considered forward-looking
statements. You should read statements that contain these words
carefully because they:
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discuss
future expectations;
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contain
information which could impact future results of operations or financial
condition; or
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·
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state
other “forward-looking”
information.
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You are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date of this prospectus.
All
forward-looking statements included herein attributable to us or any person
acting on our behalf are expressly qualified in their entirety by the cautionary
statements contained or referred to in this section. Except to the extent
required by applicable laws and regulations, we undertake no obligation to
update these forward-looking statements to reflect events or circumstances after
the date of this document or to reflect the occurrence of unanticipated
events.
RISK
FACTORS
An investment in our common stock
involves risk. Before making an investment decision, you should
carefully consider the risks described under “Risk Factors” in our Annual
Reports on Form 10-K, or any updates to our risk factors in our Quarterly
Reports on Form 10-Q, together with all of the other information appearing in or
incorporated by reference into this prospectus and any applicable prospectus
supplement, in light of your particular investment objectives and financial
circumstances. Our business, financial condition or results of operations could
be materially adversely affected by any of these risks. The trading price of our
securities could decline due to any of these risks, and you may lose all or part
of your investment.
USE
OF PROCEEDS
The Selling Stockholders are offering
up to 262,500 shares of our Common Stock underlying stock options granted to the
Selling Stockholders under our Amended and Restated 2007 Equity Incentive
Plan. We will not receive any proceeds from the sale of the
Common Stock by the Selling Stockholders. However, if all of the
Selling Stockholders exercise their options for cash we will receive proceeds of
$1,643,375.
SELLING
STOCKHOLDERS
This
prospectus relates to shares of our Common Stock that are being registered for
reoffers and resales by the Selling Stockholders named below who have acquired
or may acquire securities pursuant to our Amended and Restated 2007 Equity
Incentive Plan. The Selling Stockholders may resell any or all of the
shares of our Common Stock at any time they choose while the registration
statement of which this prospectus forms a part is
effective.
Affiliates
that acquire shares of our Common Stock may be added to the Selling Stockholders
list below by a prospectus supplement filed with the SEC. The number
of shares to be sold by any Selling Stockholder under this prospectus also may
be increased or decreased by a prospectus supplement.
Unless
otherwise indicated in the footnotes to this table, to our knowledge, all
persons named in the table have sole voting and investment power with respect to
their shares of common stock, except to the extent authority is shared by
spouses under applicable law. The inclusion of any shares in this
table does not constitute an admission of beneficial ownership for the person
named below. The Selling Stockholders may offer all or some portion of the
shares of the Common Stock. Accordingly, no estimate can be given as
to the amount or percentage of our Common Stock that will be held by the Selling
Stockholders upon completion of sales pursuant to this prospectus.
As of May
3, 2010, there were 34,553,566 shares of our Common Stock
outstanding.
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Name and Title of Selling Stockholder
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Number of
Shares
Beneficially
Owned Prior
to this
Offering (1)
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Number of
Shares offered
Hereby
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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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Xiaobin
Liu, Chief Executive Officer and Director
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50,000(2)
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50,000
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0
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*
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Min
Li, Chief Financial Officer
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50,000(2)
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50,000
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0
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*
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Naihui
Miao, Chief Operating Officer
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50,000(2)
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50,000
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0
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*
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Richard
Khaleel, Director
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37,500(2)
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37,500
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0
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*
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Biagio
Vignolo, Director
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37,500(3)
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37,500
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0
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*
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Ya
Fei Ji, Director
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25,000(2)
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25,000
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0
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*
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Shi
Tong Jiang, Director
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12,500(2)
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12,500
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0
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*
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______________
* Indicates
less than 1%.
(1)
Beneficial ownership is determined in accordance with the rules and regulations
of the SEC. In computing the number of shares beneficially owned by a person and
the percentage ownership of that person, securities that are currently
convertible or exercisable into shares of our Common Stock, or convertible or
exercisable into shares of our Common Stock within 60 days of the date hereof
are deemed outstanding. Such shares, however, are not deemed outstanding for the
purposes of computing the percentage ownership of any other person. Except as
indicated in the footnotes to the following table, each stockholder named in the
table has sole voting and investment power with respect to the shares set forth
opposite such stockholder’s name.
(2)
Represents shares underlying stock options.
(3)
Represents 25,000 shares underlying stock options and 12,500 shares of Common
Stock.
PLAN
OF DISTRIBUTION
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any 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. The Selling Stockholders may use any one or more of
the following methods when selling shares:
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(i)
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits investors;
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(ii)
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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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(iii)
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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(iv)
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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(v)
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privately
negotiated transactions;
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(vii)
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broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
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(viii)
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a
combination of any such methods of sale;
and
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(ix)
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any
other method permitted pursuant to applicable
law.
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The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Until
such time as the Company satisfies the registrant requirements for use of Form
S-3 under the Securities Act of 1933, the amount of our common stock to be
reoffered or resold by means of this reoffer prospectus by each Selling
Stockholder, may not exceed the amount specified in Rule 144(e) of the
Securities Act of 1933.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions
and discounts to exceed what is customary in the types of transactions
involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933, as amended, amending the
list of Selling Stockholders to include the pledgee, transferee or other
successors in interest as Selling Stockholders under this
prospectus.
The
Selling Stockholders also may transfer the shares of Common Stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this
prospectus.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares 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 the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions,
commissions and similar selling expenses, if any, that can be attributed to the
sale of securities will be paid by the selling stockholder and/or the
purchasers. At the time a particular offer of shares is made by the
Selling Stockholders, to the extent required, a prospectus will be
distributed. Each selling stockholder has represented and warranted
to the Company that it acquired the securities subject to this registration
statement in the ordinary course of such selling stockholder’s business and, at
the time of its purchase of such securities such selling stockholder had no
agreements or understandings, directly or indirectly, with any person to
distribute any such securities.
LIMITATION
ON LIABILITY AND INDEMNIFICATION MATTERS
Section
145 of the Delaware General Corporation Law authorizes a court to award, or a
corporation’s board of directors to grant, indemnity to directors and officers
in terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended (the “Securities
Act”).
The
Certificate of Incorporation and By-Laws of the Registrant provide that the
registrant shall indemnify any person to the full extent permitted by the
Delaware General Corporation Law (the “DGCL”). Section 145 of the DGCL, relating
to indemnification, is hereby incorporated herein by reference.
Our
Certificate of Incorporation eliminates the liability of a director for monetary
damages for breach of duty as a director, subject to certain exceptions. In
addition, our Certificate of Incorporation provides for indemnification, under
certain conditions, of our directors, officers, employees and agents against all
expenses, liabilities and losses reasonably incurred by them in the course of
their duties. These provisions may reduce the likelihood of derivative
litigation against directors and may discourage or deter stockholders or
management from suing directors for breaches of their duty of care, even though
such an action, if successful, might otherwise benefit us and our
stockholders.
In
addition, the registrant currently maintains an officers’ and directors’
liability insurance policy which insures, Insofar as indemnification for
liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable.
EXPERTS
BDO
Limited, an independent registered public accounting firm, has audited our
financial statements incorporated by reference in this prospectus for the year
ended December 31, 2009. Our financial statements are
incorporated by reference in reliance on the respective report of BDO Limited
and given upon their authority as experts in accounting and
auditing.
INCORPORATION
OF DOCUMENTS BY REFERENCE
This
prospectus is part of a registration statement on Form S-8. The
prospectus is prepared in accordance with the requirements of Part I of Form S-3
and General Instruction C of the instructions to Form S-8. The SEC
allows this filing to “incorporate by reference” information that the Company
previously has filed with the SEC. This means the Company can
disclose important information to you by referring you to other documents that
it has filed with the SEC. The information that is incorporated by
reference is considered part of this prospectus, and information that the
Company files later will automatically update and may supersede this
information. For further information about the Company and the
securities being offered, you should refer to the registration statement and the
following documents that are incorporated by reference:
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·
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the
Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2009 filed with the SEC on March 2,
2010;
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·
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the
Company’s Quarterly Reports on Form 10-Q for the quarterly period ended
March 31, 2009 filed with the SEC on May 11, 2009, for the quarterly
period ended June 30, 2009 filed with the SEC on August 10, 2009 and for
the quarterly period ended September 30, 2009 filed with the SEC on
November 9, 2009;
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·
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the
Company’s Current Reports on Form 8-K, filed with the SEC on January 7,
2009, January 29, 2009, February 4, 2009, February 6, 2009, February 27,
2009, March 16, 2009, May 14, 2009, May 15, 2009, May 18, 2009, June 9,
2009, June 18, 2009, June 26, 2009, July 24, 2009, August 3, 2009, August
12, 2009, September10, 2009, October 5, 2009, November 10, 2009, December
14, 2009, December 24, 2009 and January 6, 2010;
and
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·
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the
description of the Company’s Common Stock contained in the Registration
Statement on Form 8-A (File No. 001-34499), together with any amendments
or reports filed for the purpose of updating such
description.
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All documents subsequently filed with
the Securities and Exchange Commission by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, (other than current reports or portions
thereof furnished under Items 2.02 or 7.01 of Form 8-K), prior to the
termination of this offering, shall be deemed to be incorporated by reference
herein and to be part of this prospectus from the respective dates of filing of
such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof or of the related prospectus supplement to the
extent that a statement in any other subsequently filed document which is also
incorporated or deemed to be incorporated 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 a part of this
prospectus.
You may request a copy of all documents
that are incorporated by reference in this prospectus by writing or telephoning
us at the following address and telephone number: Xiaobin Liu,, Chief Executive
Officer, Gulf Resources, Inc., Chenming Industrial Park, Shouguang City,
Shandong, China, 262714, Tel: +86 (536) 567-0008. We will provide
copies of all documents requested (not including exhibits to those documents,
unless the exhibits are specifically incorporated by reference into those
documents or this prospectus) without charge.
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with the SEC a
Post-Effective Registration Statement on Form S-8 under the Securities Act with
respect to the shares of Common Stock offered hereby. This prospectus, which
constitutes a part of the registration statement, does not contain all of the
information set forth in the registration statement or the exhibits and
schedules filed therewith. For further information about us and the Common Stock
offered hereby, reference is made to the registration statement and the exhibits
and schedules filed therewith.
We are required to file annual and
quarterly reports, current reports, proxy statements, and other information with
the SEC. You can read our SEC filings, including the registration
statement, on the SEC’s website at http://www.sec.gov. You also may read and
copy any document we file with the SEC at its public reference facility
at:
U.S.
Securities and Exchange Commission
100 F
Street, N.E.
Washington,
D.C. 20549.
You may
obtain information on the operation of the Public Reference Room by calling the
SEC at 1-800-SEC-0330. Information contained on our web site should
not be considered part of this prospectus. You may also request a
copy of our filings at no cost, by writing or telephoning us at Gulf Resources,
Inc., Attention: Secretary, 99 Wenchang Raod, Chenming Industrial Park,
Shouguang City, Shandong, China, 262714, Tel: +86 (536) 567-0008.
Part
II
Information
required in the registration statement
Item
3. Incorporation of Documents by Reference
The
following documents filed by the Company with the Securities and Exchange
Commission (the “Commission”) are incorporated by reference in this Registration
Statement.
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·
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the
Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2009 filed with the SEC on March 2,
2010;
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·
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the
Company’s Quarterly Reports on Form 10-Q for the quarterly period ended
March 31, 2009 filed with the SEC on May 11, 2009, for the quarterly
period ended June 30, 2009 filed with the SEC on August 10, 2009 and for
the quarterly period ended September 30, 2009 filed with the SEC on
November 9, 2009;
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·
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the
Company’s Current Reports on Form 8-K, filed with the SEC on January 7,
2009, January 29, 2009, February 4, 2009, February 6, 2009, February 27,
2009, March 16, 2009, May 14, 2009, May 15, 2009, May 18, 2009, June 9,
2009, June 18, 2009, June 26, 2009, July 24, 2009, August 3, 2009, August
12, 2009, September10, 2009, October 5, 2009, November 10, 2009, December
14, 2009, December 24, 2009 and January 6, 2010;
and
|
|
|
·
|
the
description of the Company’s Common Stock contained in the Registration
Statement on Form 8-A (File No. 001-34499), together with any amendments
or reports filed for the purpose of updating such
description.
|
All reports and other documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment that
indicates that all securities offered have been sold or that 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 the filing of such reports and documents. Unless expressly incorporated
into this Registration Statement, a report furnished but not filed on Form 8-K
shall not be incorporated by reference into 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
Amended and Restated Certificate of Incorporation provides that all directors,
officers, employees and agents of the registrant shall be entitled to be
indemnified by us to the fullest extent permitted by under Delaware
law.
Section
145 of the Delaware General Corporation Law concerning indemnification of
officers, directors, employees and agents is set forth below.
“Section
145. Indemnification of officers, directors, employees and agents;
insurance.
(a) A
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To
the extent that a present or former director or officer of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this section, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any
indemnification under subsections (a) and (b) of this section (unless ordered by
a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because the
person has met the applicable standard of conduct set forth in subsections (a)
and (b) of this section. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e)
Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees and agents may be
so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other subsections of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office. A right to
indemnification or to advancement of expenses arising under a provision of the
certificate of incorporation or a bylaw shall not be eliminated or impaired by
an amendment to such provision after the occurrence of the act or omission that
is the subject of the civil, criminal, administrative or investigative action,
suit or proceeding for which indemnification or advancement of expenses is
sought, unless the provision in effect at the time of such act or omission
explicitly authorizes such elimination or impairment after such action or
omission has occurred.
(g) A
corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify such
person against such liability under this section.
(h) For
purposes of this section, references to "the corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(i) For
purposes of this section, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to "serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The
indemnification and advancement of expenses provided by, or granted pursuant to,
this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(k) The
Court of Chancery is hereby vested with exclusive jurisdiction to hear and
determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).”
Paragraph
10 of our Amended and Restated Certificate of Incorporation
provides:
“The
corporation shall, to the fullest extent permitted by Section 145 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.”
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers, and controlling persons pursuant to the
foregoing provisions, or otherwise, we have been advised that in the opinion of
the SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment of expenses
incurred or paid by a director, officer or controlling person in a successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, we
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to the court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The
underwriting agreement, if an underwriting agreement is utilized, may provide
for indemnification by any underwriters of the company, our directors, our
officers who sign the registration statement and our controlling persons (if
any) for some liabilities, including liabilities arising under the Securities
Act.
Item
7. Exemption From Registration Claimed.
Not
applicable.
Item
8. Exhibits
|
Exhibit
Number
|
Description
|
|
|
|
|
4.1*
|
Specimen
Common Stock Certificate
|
|
|
|
|
4.2*
|
Gulf
Resources, Inc. 2007 Equity Incentive Plan, as amended
|
|
|
|
|
4.3*
|
Gulf
Resources, Inc. 2007 Equity Incentive Plan Stock Option
Agreement
|
|
|
|
|
5.1
|
Consent
of Eaton & VanWinkle LLP (1)
|
|
|
|
|
23.1*
|
Consent
of BDO Limited
|
|
|
|
|
23.2
|
Consent
of Eaton & VanWinkle LLP is contained in Exhibit 5.1.
(1)
|
|
|
|
|
24.1*
|
Power
of Attorney (included on signature pages
hereto.)
|
* Filed
herewith
(1)
Incorporated by reference from the Registration Statement on Form S-8 filed on
February 28, 2007
Item
9. 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement.; and
(iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S-8, 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 Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2)
that, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3)
to remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
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 that is
incorporated by reference into this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C.
Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets the requirements for filing
this Post-Effective Amendment No. 1 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 Shouguang, People’s Republic of China, on the
3rd day of May 2010.
|
|
GULF
RESOURCES, INC.
|
|
|
|
|
|
|
|
|
By
|
/s/
Xiaobin Liu
|
|
|
|
|
Name: Xiaobin
Liu
|
|
|
|
|
Title: Chief
Executive Officer
|
|
|
|
|
|
|
POWER
OF ATTORNEY
KNOW ALL
BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Xiaobin Liu and Min Li or either of them, as his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, in any and all capacities, to sign any or 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 Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their 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 in the capacities and on the dates
indicated.
|
Name
|
|
Position
|
Date
|
|
|
|
|
|
|
/s/
Xiaobin Liu
|
|
Chief
Executive Officer (Principal Executive Officer) and
Director
|
May
3, 2010
|
|
Xiaobin
Liu
|
|
|
|
|
|
|
|
|
/s/
Ming Yang
|
|
Chairman
|
May
3, 2010
|
|
Ming
Yang
|
|
|
|
|
|
|
|
|
/s/
Min Li
|
|
Chief
Financial Officer (Principal Accounting Officer)
|
May
3, 2010
|
|
Min
Li
|
|
|
|
|
|
|
|
|
|
/s/
Naihui Miao
|
|
Director
|
May
3, 2010
|
|
Naihui
Miao
|
|
|
|
|
|
|
|
|
|
/s/
Richard Khaleel
|
|
Director
|
May
3, 2010
|
|
Richard
Khaleel
|
|
|
|
|
|
|
|
|
|
/s/
Biagio Vignolo
|
|
Director
|
May
3, 2010
|
|
Biagio
Vignolo
|
|
|
|
|
|
|
|
|
|
/s/
Shi Tong Jiang
|
|
Director
|
May
3, 2010
|
|
Shi
Tong Jiang
|
|
|
|
|
|
|
|
|
|
/s/
Ya Fei Ji
|
|
Director
|
May
3, 2010
|
|
Ya
Fei Ji
|
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
|
|
4.1*
|
Specimen
Common Stock Certificate
|
|
|
|
|
4.2*
|
Amended
and Restated Gulf Resources, Inc. 2007 Equity Incentive
Plan
|
|
|
|
|
4.3*
|
Gulf
Resources, Inc. 2007 Equity Incentive Plan Stock Option
Agreement
|
|
|
|
|
5.1
|
Consent
of Eaton & Van Winkle LLP (1)
|
|
|
|
|
23.1*
|
Consent
of BDO Limited
|
|
|
|
|
23.2
|
Consent
of Eaton & Van Winkle LLP is contained in Exhibit 5.1.
(1)
|
|
|
|
|
24.1*
|
Power
of Attorney (included on signature pages
hereto.)
|
* Filed
herewith
(1)
Incorporated by reference from the Registration Statement on Form S-8 filed on
February 28, 2007
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